THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


The  World's  Legal  Philosophies 


18  98         ^ 


THE  MODERN  LEGAL  PHILOSOPHY 
SERIES 


Edited  by  a  Committee  of  the 
ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


INTRODUCTION  TO  THE  SCIENCE  OF  LAW.  By  Karl 
Gareis  of  the  University  of  Munich.  Translated  by  Albert 
KocouREK  of  Northwestern  University. 

THE  WORLD'S  LEGAL  PHILOSOPHIES.  By  Fritz  Berolz- 
HEIMER  of  Berlin.    Translated  by  Rachel  S.  Jastrow. 

COMPARATIVE  LEGAL  PHILOSOPHY,  applied  to  Legal 
Institutions.  By  LuiGl  Miraglia  of  the  University  of 
Naples.     Translated  by  John  Lisle  of  the  Philadelphia  Bar. 

GENERAL  THEORY  OF  LAW.  By  N.  M.  Korkunov  of  the 
University  of  St.  Petersburg.  Translated  by  W.  G.  Hastings 
of  the  University  of  Nebraska. 

LAW  AS  A  MEANS  TO  AN  END.  By  Rudolf  von  Ihering 
of  the  University  of  Berlin.  Translated  by  Isaac  Husik  of 
the  University  of  Pennsylvania. 

MODERN  FRENCH  LEGAL  PHILOSOPHY.  By  A.  Fouillee, 
J.  ("iiar.mont,  L.  DiGUiT  and  R.  Demogue  of  the  Uni- 
versities of  Paris,  Montpellier,  Bordeaux  and  Lille.  Trans- 
lated by  Mrs.  F.  W.  Scott  and  Joseph  P.  Chamberlain. 

SCIENCE  OF  LEGAL  METHOD,  SELECT  ESSAYS.  By 
\  arious  Writers. 

THE  FORMAL  BASES  OF  LAW.  By  G.  Del  Vecchio  of  the 
rniv«rsity  of  Bologna.  Translated  by  John  Lisle  of  the 
l'liila<l(l|)lii,i  H.ir. 

THE  Pilll.OSOl'HY  OF  LAW.  By  Joskf  Köhler  of  the  Uni- 
"tcrhity  of  Ikrliii.     Translated  by  Aualuekt  Alurecht. 


Modern  Legal  Philosophy  Series: 


THE  WORLD'S 

LEGAL  PHILOSOPHIES 


BY 

FRITZ  BEROLZHEIMER 

President  of  the  International  Society  of  Legal  and 
Economic  Philosophy  at  Berlin 

TRANSLATED  FROM  THE  GERMAN  BY 

RACHEL  SZOLD  JASTROW 

of  Madison,  Wisconsin 
WITH  AN  INTRODUCTION  BY 

SIR  JOHN   MACDONELL 
Professor  of  Comparative  Law  in  University  College,  London 

AND    BY 

ALBERT  KOCOUREK 
Lecturer  on  Jurisprudence  in  Northwestern  University 

5?pw  f  nrit 
THE  MAGMILLAN  COMPANY 

1924 

All  rights  reserved 


STjoI 


HIINTED    IN    THE    UNITED    STATES    OF    AMERICA 


Copyright,  1912, 
By  the  MACMILLAN  COMPANY. 


Reprinted  August,  1924. 


1(5  0 


EDITORIAL  COMMITTEE  OP  THE  ASSOCIATION 
OF  AMERICAN  LAW  SCHOOLS 


Morris  R.  Cohen,  Professor  of  Philosophy,  College  of  the  City  of 

New  York. 
Joseph  H.  Drake,  Professor  of  Law,  University  of  Michigan. 
Albert  Kocourek,  Professor  of  Law,  Northwestern  University. 
Ernest  G.  Lorenzen,  Professor  of  Law,  Yale  University. 
Floyd  R.  Mechem,  Professor  of  Law,  University  of  Chicago. 
RoscoE  Pound,  Professor  of  Law,  Harvard  University. 
Arthur  W.  Spencer,  Brookline,  Mass. 
John  H.  Wigmore,    Chairman,  Professor  of  Law,   Northwestern 

University. 


LIST  OF  TRANSLATORS 

Adalbert  Albrecht,  South  Easton,  Mass. 

Ernest  Bruncken,  Washington,  D.  C. 

Joseph  P.  Chamberlain,  Columbia  University. 

Wm.  G.  Hastings,  Professor  of  Law,  University  of  Nebraska. 

Isaac  Husik,  Professor  of  Philosophy,  University  of  Pennsylvania. 

Rachel  Szold  Jastrow,  Madison,  Wis. 

Albert  Kocourek,  Chicago,  111.  (of  the  Editorial  Committee). 

John  Lisle,  Philadelphia,  Pa.  (of  the  Philadelphia  Bar). 

Martha  Mc.  Read,  Washington,  D.  C. 

Ethel  Forbes  Scott,  Urbana,  111. 

John  Simpson,  New  York,  N.  Y.  (of  the  New  York  Bar). 


GENERAL  INTRODUCTION  TO 
THE  SERIES 

By  the  Editorial  Committee 


"Until  either  philosophers  become  kings,"  said  Soc- 
rates, "or  kings  philosophers,  States  will  never  succeed 
in  remedying  their  shortcomings."  And  if  he  was  loath 
to  give  forth  this  view,  because,  as  he  admitted,  it  might 
"sink  him  beneath  the  waters  of  laughter  and  ridicule," 
so  to-day  among  us  it  would  doubtless  resound  in  folly 
if  we  sought  to  apply  it  again  in  our  own  field  of  State 
life,  and  to  assert  that  philosophers  must  become  lawyers 
or  lawyers  philosophers,  if  our  law  is  ever  to  be  advanced 
into  its  perfect  working. 

And  yet  there  is  hope,  as  there  is  need,  among  us  to-day, 
of  some  such  transformation.  Of  course,  history  shows 
that  there  always  have  been  cycles  of  legal  progress, 
and  that  they  have  often  been  heralded  and  guided  by 
philosophies.  But  particularly  there  is  hope  that  our 
own  people  may  be  the  generation  now  about  to  exem- 
plify this. 

There  are  several  reasons  for  thinking  our  people 
apt  thereto.  But,  without  delaying  over  the  grounds 
for  such  speculations,  let  us  recall  that  as  shrewd  and 
good-natured  an  observer  as  De  Tocqueville  saw  this 
in  us.  He  admits  that  "in  most  of  the  operations  of 
the  mind,  each  American  appeals  to  the  individual  exer- 
cise of  his  own  understanding  alone;  therefore  in  no 
country  in  the  civilized  world  is  less  attention  paid  to 
philosophy  than  in  the  United  States."  But,  he  adds, 
"the  Americans  are  much  more  addicted  to  the  use  of 
general  ideas  than  the  English,  and  entertain  a  much 


GENERAL  INTRODUCTION 

greater  relish  for  them."  And  since  philosophy  is,  after 
all,  only  the  science  of  general  ideas — analyzing,  restat- 
ing, and  reconstructing  concrete  experience — we  may 
well  trust  that  (if  ever  we  do  go  at  it  with  a  will)  we  shall 
discover  in  ourselves  a  taste  and  high  capacity  for  it, 
and  shall  direct  our  powers  as  fruitfully  upon  law  as  we 
have  done  upon  other  fields. 

Hitherto,  to  be  sure,  our  own  outlook  on  juristic 
learning  has  been  insular.  The  value  of  the  study  of 
comparative  law  has  only  in  recent  years  come  to  be 
recognized  by  us.  Our  juristic  methods  are  still  primi- 
tive, in  that  we  seek  to  know  only  by  our  own  experi- 
ence, and  pay  no  heed  to  the  experience  of  others.  Our 
historic  bond  with  English  law  alone,  and  our  conse- 
quent lack  of  recognition  of  the  universal  character  of 
law  as  a  generic  institution,  have  prevented  any  wide 
contact  with  foreign  literatures.  While  heedless  of 
external  help  in  the  practical  matter  of  legislation,  we 
have  been  oblivious  to  the  abstract  nature  of  law.  Phi- 
losophy of  law  has  been  to  us  almost  a  meaningless  and 
alien  phrase.  "All  philosophers  are  reducible  in  the 
end  to  two  classes  only:  utilitarians  and  f utilitarians, " 
is  the  cynical  ei:)igram  of  a  great  wit  of  modern  fiction. ^ 
And  no  douljt  the  philistines  of  our  profession  would 
echo  this  sarcasm. 

And  yet  no  country  and  no  age  have  ever  been  free 
(wliether  conscious  of  the  fact  or  not)  from  some  drift 
of  philosophic  thought.  "In  each  epoch  of  time,"  says 
M.  Leroy,  in  a  Imlliant  book  of  recent  years,  "there  is 
current  a  certain  type  of  philosophic  doctrine — a  phi- 
losophy deep-seated  in  each  one  of  us,  and  observable 
clearly  and  consciously  in  the  utterances  of  the  day — 
alike  in  novels,  newspapers,  and  speeches,  and  equally 

'  M.  DuinuruiKj,  in  Mr,  Patcrson's  "The  Old  Dance  Master." 


GENERAL  INTRODUCTION 

in  town  and  country,  workshop  and  counting-house." 
Without  some  fundamental  basis  of  action,  or  theory 
of  ends,  all  legislation  and  judicial  interpretation  are 
reduced  to  an  anarchy  of  uncertainty.  It  is  like  mathe- 
matics without  fundamental  definitions  and  axioms. 
Amidst  such  conditions,  no  legal  demonstration  can  be 
fixed,  even  for  a  moment.  Social  institutions,  instead 
of  being  governed  by  the  guidance  of  an  intelligent  free 
will,  are  thrown  back  to  the  blind  determinism  of  the 
forces  manifested  in  the  natural  sciences.  Even  the 
phenomenon  of  experimental  legislation,  which  is  pecu- 
liar to  Anglo-American  countries,  cannot  successfully 
ignore  the  necessity  of  having  social  ends. 

The  time  is  ripe  for  action  in  this  field.  To  quote  the 
statement  of  reasons  given  in  the  memorial  presented  at 
the  annual  meeting  of  the  Association  of  American  Law 
Schools  in  August,  1910: — 

The  need  of  the  series  now  proposed  is  so  obvious  as  hardly  to 
need  advocacy.  We  are  on  the  threshold  of  a  long  period  of  construc- 
tive readjustment  and  restatement  of  our  law  in  almost  every  depart- 
ment. We  come  to  the  task,  as  a  profession,  almost  wholly  untrained 
in  the  technic  of  legal  analysis  and  legal  science  in  general.  Neither 
we,  nor  any  community,  could  expect  anything  but  crude  results 
without  thorough  preparation.  Many  teachers,  and  scores  of 
students  and  practitioners,  must  first  have  become  thoroughly 
familiar  with  the  world's  methods  of  juristic  thought.  As  a  first 
preparation  for  the  coming  years  of  that  kind  of  activity,  it  is  the 
part  of  wisdom  first  to  familiarize  ourselves  with  what  has  been 
done  by  the  great  modem  thinkers  abroad — to  catch  up  with  the 
general  state  of  learning  on  the  subject.  After  a  season  of  this,  we 
shall  breed  a  family  of  well-equipped  and  original  thinkers  of  our 
own.  Our  own  law  must,  of  course,  be  worked  out  ultimately  by 
our  own  thinkers;  but  they  must  first  be  equipped  with  the  state 
of  learning  in  the  world  to  date. 

How  far  from  "unpractical"  this  field  of  thought  and  research 
really  is  has  been  illustrated  very  recently  in  the  Federal  Supreme 
Court,  where  the  opposing  opinions  in  a  great  case  (Kuhn  v.  Fair- 


GENERAL   INTRODUCTION 

monl  Coal  Co.)  turned  upon  the  respective  conceptions  of  "law" 
in  the  abstract,  and  where  Professor  Gray's  recent  work  on  "The 
Nature  and  Sources  of  the  Law"  was  quoted,  and  suppHed  direct 
material  for  judicial  decision. 

Acting  upon  this  memorial,  the  following  resolution 
was  passed  at  that  meeting : — 

That  a  committee  of  five  be  appointed  by  the  president,  to  arrange 
for  the  translation  and  publication  of  a  series  of  continental  master- 
works  on  jurisprudence  and  philosophy  of  law. 

The  committee  spent  a  year  in  collecting  the  material. 
Advice  was  sought  from  a  score  of  masters  in  the  leading 
universities  of  France,  Germany,  Italy,  Spain,  and  else- 
where.    The  present  series  is  the  result  of  these  labors. 

In  the  selection  of  this  series,  the  committee's  pur- 
pose has  been,  not  so  much  to  cover  the  whole  field  of 
modern  philosophy  of  law,  as  to  exhibit  faithfully  and 
fairh'  all  the  modem  viewpoints  of  any  present  impor- 
tance. The  older  foundation-works  of  two  generations 
ago  are,  with  some  exceptions,  already  accessible  in 
English  translation.  But  they  have  been  long  sup- 
planted by  the  products  of  newer  schools  of  thought 
which  are  offered  in  this  series  in  their  latest  and  most 
representative  fomi.  It  is  believed  that  the  complete 
series  will  represent  in  compact  form  a  collection  of 
materials  whose  equal  cannot  be  found  at  this  time  in 
any  single  foreign  literature. 

The  committee  has  not  sought  to  offer  the  final  solu- 
tion of  any  jjliilosojihical  or  juristic  problems;  nor  to 
follow  any  iircfcrcnce  for  any  ]jarticular  theory  or  school 
of  thought.  Its  chief  purpose  has  been  to  present  to 
ICnglish  readers  the  most  representative  views  of  the 
most  modern  Vvriters  in  jurisprudence  and  philosophy 
of  law.  I^hc  scries  shows  a  wide  geographical  represen- 
tation; but.   the  sclec'lion   lias  not  been   ccnlcrcd   on  the 


GENERAL   INTRODUCTION 

notion  of  giving  equal  recognition  to  all  countries.  Pri- 
marily, the  desire  has  been  to  represent  the  various 
schools  of  thought;  and,  consistently  with  this,  then  to 
represent  the  different  chief  countries.  This  aim,  how- 
ever, has  involved  little  difficulty;  for  Continental 
thought  has  lines  of  cleavage  which  make  it  easy  to  rep- 
resent the  leading  schools  and  the  leading  nations  at 
the  same  time. 

To  offer  here  an  historical  introduction,  surveying  the 
various  schools  of  thought  and  the  progress  from  past 
to  present,  was  regarded  by  the  committee  as  unneces- 
sary. The  volumes  of  Dr.  Berolzheimer  and  Professor 
Miraglia  amply  serve  this  purpose;  and  the  introductory 
chapter  of  the  latter  volume  provides  a  short  summary 
of  the  history  of  general  philosophy,  rapidly  placing 
the  reader  in  touch  with  the  various  schools  and  their 
standpoints.  The  series  has  been  so  arranged  (in  the 
numbered  list  fronting  the  title  page)  as  to  indicate  that 
order  of  perusal  which  will  be  most  suitable  for  those  who 
desire  to  master  the  field  progressively  and  fruitfully. 

The  committee  takes  great  pleasure  in  acknowledg- 
ing the  important  part  rendered  in  the  consummation 
of  this  project,  by  the  publisher,  the  authors,  and  the 
translators.  Without  them  this  series  manifestly  would 
have  been  impossible. 

To  the  publisher  we  are  grateful  for  the  hearty  spon- 
sorship of  a  kind  of  literature  which  is  so  important  to 
the  advancement  of  American  legal  science.  And  here 
the  Committee  desires  also  to  express  its  indebtedness 
to  Elbert  H.  Gary,  Esq.,  of  New  York  City,  for  his 
ample  provision  of  materials  for  legal  science  in  the  Gary 
Library  of  Continental  Law  (in  Northwestern  University) . 

In  the  researches  of  preparation  for  this  Series,  those 
materials  were  found  indispensable. 

The  authors  (or  their  representatives)  have  cordially 
granted  the  right  of  English  translation,  and  have  shown 


GENERAL   INTRODUCTION 

a  friendly  interest  in  promoting  our  aims.  The  com- 
mittee would  be  assuming  too  much  to  thank  these 
learned  writers  on  its  own  behalf,  since  the  debt  is  one 
that  we  all  owe. 

The  severe  labor  of  this  undertaking  fell  upon  the 
translators.  It  required  not  only  a  none  too  common 
linguistic  skill,  but  also  a  wide  range  of  varied  learning 
in  fields  little  travelled.  Whatever  success  may  attend 
and  whatever  good  may  follow  will  in  a  peculiar  way 
be  attributable  to  the  scholarly  labors  of  the  several- 
translators. 

The  committee  finds  special  satisfaction  in  having 
been  able  to  assemble  in  a  common  purpose  such  an  array 
of  talent  and  learning;  and  it  will  feel  that  its  own  small 
contribution  of  this  unified  effort  has  been  amply  recom- 
pensed if  this  series  will  measurably  help  to  improve 
and  to  refine  our  institutions  for  the  administration  of 
justice. 


INTRODUCTION  TO  THE  TRANSLATED 
VOLUME 

By  Albert  Kocourek^ 


At  this  moment  legal  philosophy  is  split  up  in  three 
important  camps  —  the  Neo-Kantians,  the  Neo-Hege- 
lians,  and  the  Positivists  —  and  the  contending  parties 
are  ranged  in  battle  formation  on  the  field  of  an  unyield- 
ing triangular  contest. 

I.  The  Kantian  system  is  essentially  formal.  The 
metaphysical  problem  of  the  nature  of  reality  is  sub- 
ordinated to  the  inquiry  into  the  validity  of  knowledge. 
Metaphysics,  says  Kant,  is  that  science  which  takes 
upon  itself  the  task  of  solving  ultimate  problems  dog- 
matically and  "without  any  previous  investigation  of  the 
ability  or  inability  of  reason  for  such  an  undertaking."  ^ 
Kant  compared  himself  to  Copernicus,  and  attempted  a 
"complete  revolution  in  the  procedure  of  metaphysics 
after  the  example  of  the  geometricians."  ^     His  system 

^Lecturer  on  Jurisprudence  in  Northwestern  University  School 
of  Law. 

^  "Critique  of  Pure  Reason"  (Meiklejohn's  translation),  London, 
1893,  Preface  vii  et  seq.,  p.  5. 

^  "Critique,"  xxxi.  "Time  is  the  formal  condition  ä  priori  of 
all  phenomena  whatsoever.  Space  as  the  pure  form  of  external 
intuition  is  limited  as  a  condition  ä  priori  to  external  phenomena 
alone"  —  "Critique,"  p.  30.  "They  are  the  two  pure  forms  of  all 
intuition  and  thereby  make  synthetical  propositions  ä  priori  possible. 
But  these  sources  of  knowledge  being  merely  conditions  of  our 
sensibility,  do  therefore,  and  as  such,  strictly  determine  their  own 
range  and  purpose,  in  that  they  do  not  and  cannot  present  objects 


xii  INTRODUCTION 

is  an  elaborate  walled-in  mechanism  constructed  of 
chilled  steel  set  apart  from  a  world  about  which  nothing 
can  be  known.  It  has  the  rigorous  motion  of  a  mathe- 
matical demonstration  and  the  absolute  symmetry  of 
an  isosceles  triangle.  It  is  only  natural  that  when  Kant 
turned  his  attention  to  the  law  he  should  base  it 
upon  a  formal  principle,  a  categorical  imperative.  This 
principle  is  the  pure  self-determination  of  the  rational 
will  expressed  in  the  formula  "Act  according  to  a  maxim 
which  may  at  the  same  time  be  applied  as  a  general 
law."  ^  It  is  at  this  point  that  Kant's  dualism  between 
a  sensuous  and  a  supersensuous  world  appears  in  its 
most  prominent  aspect.  The  theoretical  reason  breaks 
down  to  give  place  to  the  practical  reason,  in  which 
freedom  is  a  necessary  postulate  of  faith  for  the  activity 
of  the  rational  will.^ 

The  uniformity  and  the  universality  of  the  laws  of 
nature  are  apparent  to  everyone,  and  the  stability  and 
necessity  of  mathematical  propositions  have  appealed 
to  the  human  mind  from  the  beginning  of  philosophic 
thought.  No  illusion  can  be  more  spontaneous  (and 
our  author  shows  us  that  illusions  are  important  in  the 
progress  of  culture)  than  that  there  is  a  fixed  external 
basis  of  measurement  for  the  valuation  of  human  acts; 
in  other  words,  that  there  is  a  law  higher,  better,  more 
ideal,  or  nnjre  just  than  positive  law.  This  thought  has 
para'leled  the  existence  of  law.'' 

as  things  in  themselves,  but  are  a|)plicabie  to  them  solely  in  so  far 
as  they  arc  considered  as  sensuous  piienomena"  —  "Critique,"  p.  33. 
See  Wiudcllnitid,  "A  History  of  Philosophy"  (Tuft's  translation), 
N.  Y.,  HMO,  pj)  .'532  et  seq.,  and  Paulsen,  "Introduction  to  Philoso- 
phy" (Thilly's  translation),  N.  ^'.,  1(M)7,  pj).  3S9  ct  seep 

'  "Mela[)hysische  Anfan^js^riiiulc  der  ]\cclUslclire,"  \).  25. 

^  See  Windclhnnd,  op.  eil.,  \).  ;"),") I. 

*  St'i'  Brrf^huliin,  "Jurisprudenz  und  l\i(lil^|)liiIosopliie,"  i,  Leipzig, 
1892,  p.  1 12. 


INTRODUCTION  xiii 

Kant's  system  was  not  only  an  intellectual  bombshell 
in  the  field  of  the  mental  sciences,  but  it  also  started 
important  and  far-reaching  developments  in  the  social 
sciences.^  If  persuasion  is  still  necessary  to  show  the 
importance  of  philosophies  in  the  practical  affairs  of  the 
world,  that  proof  is  readily  found  in  the  after-effects  of 
Kant's  ideas.2  From  the  standpoint  of  the  lawyer,  per- 
haps the  most  important  position  arrived  at  by  Kant  is 
his  atomistic  conception  of  the  State  and  law:  the  State 
is  the  sum-total  of  the  number  of  individuals  in  it.^ 
The^purpose  of  the  State  is  simply  t^  afford  legal  prote^-  _ 
tion  to  its  members  in  an  equal  degree.  Such  a  State  i^ 
limited  solely  to  a  protective  function,  and  in  political 
economy  gives  the  "laissez  faire"  principle* 

The  Neo-Kantian  school  has  attampted  to  humanize 
Kant.  It  has  "sought  a  method  of  determining  not  t'12 
absolutely  and  eternally  just  but  the  just  relatively  and 

^"  Kant  set  everything  into  most  animated  motioi  in  the  camps 
of  all  the  divisions  of  the  intellectual  army,  and  they  all  put  them- 
selves under  his  banner.  His  rationalism  contained  not  only  the 
germ  of  a  new  cultivation  of  the  branches  of  jurisprudence  for 
which  philosophy  is  an  indispensable  basis,  but  even  in  the  purely 
positive  departments  of  the  science,  new  creations  were  reared  upon 
the  foundation  already  laid."  Friedländcr  (in  "Outlines  of  the 
Science  of  Jurisprudence,"  translated  by  W.  Hastie,  Edinburgh, 
1887,  p.  262). 

^Such  persuasion  as  to  legal  philosophy  is  still  desirable  in  this 
country  according  to  Professor  Pound,  who  says:  "The  present 
Anglo-American  attitude  toward  the  philosophy  of  law  has  its 
counterpart  in  the  phase  of  juristic  thought  from  which  we  have 
happily  emerged  in  which  it  was  fashionable  for  every  dabbler  in 
jurisprudence  to  have  his  fling  at  Austin."  "The  Scope  and  Pur- 
pose of  Sociological  Jurisprudence,"  Harvard  Laiu  Review,  x.xiv, 
no.  8,  p.  607. 

^ Berolzheimer,  "Für  den  Neuhegelianismus."  (Archiv  für  Rechts- 
und Wirtschaftsphilosophie,  Bd.  III,  Heft  2,  p.  194.) 

*  SeeCareis,  "Iiitrod.  to  the  Science  of  Law,"  p.  223. 


xiv  INTRODUCTION 

{      for  the  time  being."  ^      It  does  not  propose  the  ancient 

doctrine  of  a  system  of  fixed  ideas  which  are  intended 

to  take  the  place  of  experience,  but  it  still  adheres  to  a 

'C      formal  principle,  a  fixed  standard  for  human  conduct — ■ 

jj  a  "natural  law  with  a  variable  content."  ^     "The  con- 

'    tent  of  a  rule  of  conduct  is  just  when  in  its  application  it 

(  conforms  to  the  social  ideal."'  This  social  ideal  is  a  com- 
munity of  men  having  a  (Kantian)  free  will.  Stammler 
has  substituted  for  Kant's  conception  of  the  highest 
good  (which  means  a  union  of  virtue  and  happiness)  a 
concession  to  the  materialism  of  Feuerbach,  Marx,  and 
Engels;  but  in  so  far  as  he  gives  primacy  to  the  teleo- 
logical  rather  than  to  the  causal  influence  of  the  processes 
of  economic  life,  he  safely  maintains  the  dualistic  posi- 
tion of  his  great  predecessor.^ 

The  practical  possibilities  of  this  latest  disguise  of 
natural  law  (as  Bergbohm  would  call  it)  are  beyond 
question.  It  is  adapted  for  a  useful  mission  of  present- 
ing a  tangible,  readily  understood,  and  attractive  pro- 
gram for  the  juridical  progress  of  tomorrow  in  the  same 
manner  that  the  Benthamic  formula  of  happiness  served 
as  the  theoretical  basis  of  the  legal  development  of 
yesterday.^  In  any  event  this  new  (if  it  can  be  so 
denominated)  theory  of  justice  will  do  much  to  fortify 
with  resi)cctability  the  rationalistic  impulse  which  re- 
sides in  every  human  breast;  and  it  will  at  least  tem- 
])orarily  rescue  the  doctrine  of  natural  law  from  the  bad 
eminence  which  it  had  attained  before  the  late  revival 
of  juridical  idealism. 

'  /'iitoid,  "  Tlu"  S(0[)c  and  Purpose  of  Sociological  Jurisprudence," 
II,   Harvard  Law  Review,  \\v,  2,  HO-l.W. 

^  SlaTJituler,  "\^'\v  l.vhrv  van  dem  Kiclitigcn  Rechte,"  Berlin  1902, 
pp.  l.'}7  et  secj. 

*.SVaww/fr,  o|i.  <  il.,  |).  IDS. 

*  Stammler,  "VVirls(hafl  nnd  Recht,^"  2d  ed.,  Leipzig  1905. 

'Cf.  Maine,  "Ancient  Law,"  London  1909,  pp.  813-84. 


INTRODUCTION  xv 

Yet,  before  a  philosophical  acceptance  of  a  natural 
law  with  a  historically  changing  content  can  be  assured, 
this  theory  must  justify  itself  on  difificult  ground.  It 
will  not  be  easy  to  see  that  form  and  content  have  any 
relation  between  themselves  in  a  real  world,  and  if  they 
bear  no  such  relation,  then  we  are  dealing  with  mere 
shadows.  The  alternative,  of  a  relation  as  of  genus 
and  species,  will  present  difficulties  to  the  man  with  a 
logical  turn  of  mind.  If  the  concrete  rules  of  law  cannot 
be  permanently  fixed,  then  the  generic  rule  itself 
must  be  subject  to  modification  unless,  of  course, 
there  is  a  difference  of  essence  between  a  principle 
and  a  rule.^ 

1 1 .  The  Neo-Hegelians  ■ —  a  name  invented  by  Berolz- 
heimer,  who  is  one  of  the  leaders  of  this  school  ■ — -  adopt 
Hegel's  concept  of  evolution  but  reject  his  dialectic 
process.  According  to  Hegel,  philosophy  is  "an  inquisi- 
tion into  the  rational  and  therefore  the  apprehension  of 
the  real  and  present.  Hence  it  cannot  be  the  exposition 
of  a  world  beyond  which  is  merely  a  castle  in  the  air, 
having  no  existence  except  in  the  terror  of  a  one-sided 
and  empty  formalism  of  thought."^  The  corner  stone 
of  the  Hegelian  system  is  the  proposition,  "What  is 
rational  is  real,  and  what  is  real  is  rational."  "The 
rational  is  synonymous  with  the  Idea,  because  in  realiz- 
ing   itself    it    passes    into    external    existence.     It    thus 

1  In  his  latest  book  recently  published  ("Theorie  der  Rechts- 
wissenschaft") Stammler  makes  clearer  his  philosophical  position. 
In  effect,  our  author,  reviewing  the  book,  says  that  it  tries  to  make 
a  compromise  between  the  voluntarism  of  Schopenhauer  and  the 
formalism  of  Kant  through  the  social  welfare  theory  of  Ihering, 
and  the  reviewer  descriptively  adds  that  Stammler's  conception  of 
the  will  ("wollen")  is  a  body  without  head  or  feet  ("Archiv  für 
Rechts-  und  Wirtschaftsphilosophie"  v,  2,  320). 

^  "Philosophy  of  Law"  (Dyde's  translation),  London,  1896,  xxvi. 


xvi  INTRODUCTION 

appears  in  an  endless  wealth  of  forms,  figures,  and 
phenomena."^ 

It  is  a  system  of  logical  pantheism  embracing  all 
nature  and  history  as  a  unified  whole  which  unfolds  as  the 
self-development  of  Idea  by  logical  necessity.  The  Idea 
or  Spirit  is  objectified  in  Law,  Morals,  and  the  State. 
The  subjective  or  absolute  Spirit  is  found  in  art,  religion, 
and  science. 

Hegel's  concept  of  freedom  is  perhaps  the  most 
striking  point  of  contact  with  the  practical  application 
of  the  law.  Kant  emphasized  the  freedom  of  the  indi- 
vidual, and  attempted  to  raise  the  principle  of  freedom 
to  a«  universal  principle.  Hegel  finds  in  the  Kantian 
position  antinomies  and  developments  in  which  "the 
moral  standpoint  wanders  aimlessly  around  without 
being  able  to  find  a  way  of  escape  from  the  mere  abstract 
imperative"  —  "it  lacks  all  organic  feeling. "^  Freedom, 
says  Hegel,  is  the  substance  of  the  Spirit; — ^  not  the 
will  of  individual  men,  but  the  general  will  of  the  Godly 
substance  is  the  principle  of  Law,  Morals,  and  the  State.^ 
The  State  is  an  ethical  notion,  but  its  full  realization  is 
found  only  in  universal  history. 

From  these  metaphysical  foundations  (thus  touched 
in  most  general  outline)  of  the  most  imposing  world- 
system  in  the  history  of  philosophy  —  combining,  as 
Windelband  says,  "the  intellectual  labors  of  two  thousand 
years"  —  the  school  of  legal  philosophy  of  which  Josef 
Köhler  is  ihe  acknowledged  head  takes  its  essential 
groundwork.^     According  to  Köhler,  law  is    a    cultural 

'  Op.  cil .  xxvii. 

-Op.  (•!(.,  p    12'.». 

^  Harms,  "Ik'Kriff,  Formen,  und  (innulletiiing  dor  Rechtsphiloso- 
phie" (Leipzig  ISSn),  pp.  ()7  et  seq. 

*  "They  [the  Neo-Iiej^ehansl  may  rlaini,  not  without  reason,  to 
he  the  heirs  of  what  is  l>est  in  llie  philosophic al  and  historical  schools 
f)f  niiieleenlli-century  Germany" —  J'oiiiid,  op.  cil.,  in  Harvard  Law 
Review,  x.w,  '2,  IT),'). 


INTRODUCTION  xvii 

phenomenoHv^  It  is,  therefore,  historical  and  relative, 
and  not  (as  Hegel  thought)  the  product  of  pure  reason 
and  logical  unfoldment.  Berolzheimer  departs  from 
Köhler,  not  in  the  foundations,  but  rather  in  the  super- 
structure. 

The  two  cardinal  elements  and  working-ideas  of 
Neo-Hegelianism  are  evolution  and  pantheisrn.  There 
is  constant  transformation,  and  unity  in  diversity. 
Hegel's  evolution  differed  from  Darwin's  in  this,  that 
it  is  a  rational  process  and  not  simply  mechanical.'^ 
Köhler  has  substituted  for  Hegel's  rationalism  the 
notion  of  Culture,  unfolding,  not  with  logical  necessity, 
but  yet  governed  by  a  transcendental  principle.^  "God 
does  not  make  a  reckoning  every  working-day."  Prog- 
ress therefore  is  not  an  unyielding  dialectical  process, 
but  an  empirical  development  with  a  fulness  of  life.* 
The  logical  principle  is  bound  up  in  the  world's  history 
with  much  that  is  illogical.^  Justice  contends  with 
injustice,  and  truth  with  error.  Change  is  the  relative 
manifestation  of  reason;  and  the  cultural  principle  at 
the  background  of  the  multiplied  activities  of  historical 
development  leads  progressively  to  man's  increased 
dominion  over  the  forces  of  nature.  Man  is  not  a  mere 
placental    mammal,    as    Haeckel    asserts,  but    has    the 

1  See  Köhler,  "Rechtsphilosophie  und  Universalrechtsgeschichte," 
in  Holtzendorff  Enz.,  6th  ed.,  Bd.  i,  pp.  1-69. 

2  See  Kohler,  "Moderne  Rechtsprobleme,"  Leipzig  1907,  sec.  3, 
p.  6. 

3  Kohler,  loc.  cit.,  p.  9.  Cf.  the  critical  essay  on  Kohler  by  Prof.  /. 
Castillejoy  Duarle  in  "Biblioteca  de  Derecho  y  de  Ciencias  Sociales," 
Madrid  1910. 

*  See  in  this  connection  the  work  of  the  Italian  Neo-Hegelian, 
Croce,  enlarged  and  translated  into  German  under  the  title,  "Leben- 
diges und  Totes  in  Hegels  Philosophie,"  Heidelberg  1909. 

^  Kahler,  "Lehrbuch  der  Rechtsphilosophie,"  Berlin  1909,  p.  13. 


xviii  INTRODUCTION 

capacity  of  acquiring  the  attributes  of  godliness.^ 
Thought  and  things  are  not,  as  in  the  Kantian  system, 
poles  apart,  but  are  consubstantial ;  they  are  related  as 
form  and  image. ^  Köhler  places  a  strong  emphasis  on 
legal  ethnology  and  universal  history  —  Berolzheimer 
thinks  too  much  emphasis.^  Berolzheimer  therefore 
also  concludes  that  Köhler  has  perhaps  made  Culture 
too  prominent,  and  that  what  he  has  felt  with  the 
intuition  of  the  philosopher  he  has  expressed  rather 
with  the  skill  of  the  artist  than  with  the  analytical  and 
logical  precision  of  the  scientist. 

In  another  important  aspect,  Berolzheimer  again 
departs  from  Köhler — -in  the  function  of  the  human 
will.  The  Heraclitean  notion  that  all  things  are  in  a 
flux  of  becoming,  and  that  change  is  the  essential  attri- 
bute of  being,  Berolzheimer  thinks  excludes  a  practical 
mission  to  Kohler's  philosophy  of  law.  He  therefore 
insists  that  legal  philosophy  is  a  branch  of  practical 
philosophy,  having  to  do  with  human  standards  and 
requiring  the  interpenetration  of  the  human  will  with 
the  totality  of  forces  which  create  the  restless  evolu- 
tionary chain. 

The  Hegelian  doctrine  therefore  requires  for  its  com- 
pletion the  idea  that  all  culture,  including  legal  culture, 
is  an  artificial  force.  This  seems  to  be  the  principal 
point  of  separation  between  Köhler  and  Berolzheimer. 
Kohler's  ])ositi<)n  seems  to  be  quietistic,^  at  least  teleo- 
logicall>',  while   Berolzheimer's  jjoint  of  view  is  active 

^  Kollier,  "The  Mission  and  Objects  of  Philosophy  of  Law," 
III.  Law  Rev.,  V,  7,  42C}. 

^  "Lehrbuch,"  p.  9. 

'"IJie  Deutsche  Keclitsphilosoiihie  iin  Zwanzigsten  Jahrhundert" 
(1900   l!)0(i),  in  "Archiv  L  R.-u.  W.  phil.,"  i,  1,  134. 

*  Kolller  vigorously  denies  this:  see  "Moderne  Rechtsprobleme," 
p.  17. 


INTRODUCTION  xix 

and  practical.  For  him,  philosophy  of  law  is  not  merely 
an  explanation  of  cultural  phenomena,  the  possession 
of  enlightened  minds,  the  ideological  counterpart  which 
reflects  but  does  not  participate  in  the  infinite  multi- 
plicity and  variability  of  life,  but  is  a  tangible,  objec-  | 
tive  and  effective  instrument  which  may  be  applied  to  / 
the  problems  of  human  society.  It  should,  however, 
be  stated  that  the  variance  between  these  great  leaders 
of  Neo-Hegelianism  on  this  important  philosophical 
position  may  turn  out  to  be  apparent  rather  than 
actual,  since  neither  writer  has  entered  on  the  dis- 
cussion of  the  point  sufficiently  to  allow  an  absolute 
judgment. 

III.  The  Positivist  School  displaces  a  metaphysics 
of  things  with  a  metaphysics  of  knowledge.  According 
to  Hume,  one  of  the  greatest  of  England's  philosophers, 
"There  is  no  knowledge  of  what  things  are  and 
how  they  work:  we  can  say  only  what  we  perceive 
by  sensation,  what  arrangement  in  space  and  time 
and  what  relations  of  resemblance  we  experience  be- 
tween them."i 

Hume's  position  reached  its  best  applied  formulation 
in  Cgmte,  for  whom  relativity  is  the  only  absolute 
principle.  On  its  theoretical  or  epistemological  side, 
Positivism  changed  into  Kantian  Criticism,  while  on  the 
practical  side,  Positivism  parallels  in  part  the  line  of 
Neo-Hegelianism.  For  Comte,  sociality  is  an  original  ^., 
fact  and  is  not  connected  with  individuals.  This  postu-  ^ 
late  is  one  much  admired  by  the  Neo-Hegelians;^  but 
the  Positivists  make  society  more  important  than  the 
State,  and  this  proposition  the  Neo-Hegelian  does  not 
admit. 

^  Windelband,  op.  cit.,  p.  478. 

^  Thus  Köhler,  "Vom  Positivismus  zum  Neu-Hegelianismus,"  in 
"Archiv  für  Rechts-  und  Wirtschaftsphilosophie,"  iii,  2,  167. 


XX  INTRODUCTION 

The  most  recent  and  best  known  development  of 
Positivism  is  expressed  by  the  pragmatic  philosophy,^ 
"The  test  of  amount  of  existence  in  a  given  object 
is,  for  pragmatism  as  for  common  sense,  amount  of 
resistance."^ 

If  the  Positivism  of  Comte  was  (as  Köhler  says) 
diluted  materialism,  it  has  at  this  day  thoroughly  dried 
out;  it  has  become  the  philosophy  which  expresses  the 
popular  conception  of  the  world,  realistic  empiricism. 
Thus  Positi\'ism  rejects  metaphysics,  and  looks  with  sus- 
picion on  ethics.  Its  methods  are  inductive  and  analyt- 
ical; it  proceeds  upon  the  basis  of  the  natural  sciences 
in  all  departments  of  knowledge.  The  world  is  subjected 
to  the  test  of  scientific  investigation  by  the  aid  of  experi- 
ence alone,  and  in  the  hands  of  such  systcmatizers  as 
Spencer  an  attempt  is  made  to  unify  the  results  of  this 
investigation  in  a  single  principle.  It  docs  not  concern 
itself  with  the  ultimate  nature  of  things,  holding  them 
unknowable,  and  rests  on  mere  description.  It  cuts 
into  the  dead  body  lying  stark  on  the  dissection  table 
but  it  knows  nothing  of  life. 

This  safely  external  and  unimaginative  method  lends 
to  Positivism  both  its  weakness  and  its  strength:  its 
weakness,  in  that  it  is  incapable  of  touching  any  of  the 
ultimate  problems  of  life;  its  strength,  in  that  it  never 
wanders  f)Ut  of  the  domain  of  lived  truths.  This  school 
will  find  a  ])lace  in  this  series  in  a  work  of  the  renowned 
Italian  teacher,  Icilio  Vanni,  and  is  brilliantly  rei)resented 
in  this  country  in  its  sociological  aspect  by  one  of  our 
])rofoun(lcst  juristic  scholars,  Roscoe  Pound. 

^  Cf.  ZJa«r/ac,  "Positivisme  ct  Pratjmalisiiic,"  iu  "Rcviu'  Pljiloso- 
phiquc,"  xxxvi,  12,  5S4. 

^  Dauriac,  "I,e  Pragmatisme  cL  le  Ktalisiiir,"  Rev.  I'll,  xxxvi, 
10,  '.','.',7  (Katlifriiic  l-^vcrcU's  suinmaiy  in  Tlic  Philo-solihical  Review, 
xxi,    1,    1  I'.tj. 


INTRODUCTION  xxi 

Berolzheimer   finds   in   the   work  of   Stammler   some 
things  to  commend,  but  he  repels  the  assertions  of  the 
sociological    school    with    the    greatest    vehemence,    as 
fatalistic,    teleological,    and    philosophically    inert.     It   -^ 
requires  to  be  noticed,   however,   that  the  sociological      ) 
school,    through    its   adherents   in   the   various   depart-    / 
ments  of  social  science,  has  had  a  greater  influence  than  [ 
the  pure   Hegelian  philosophy  in   bringing  about   that  \ 
very   emancipation   of   the   classes  which    Berolzheimer     / 
(annexing  the  group  sociology  of  Gumplovvicz)  indicates    ( 
as  the  greatest  practical  vocation  of  philosophy  of  law;     \ 
and  that  it  has  been  one  of  the  strongest  forces  work- 
ing with  a  practical  program  and  a  readily  understood  _/ 
theory  in  the  latter-day  movement  of  the  socialization 
ofjthe  Jaw. 

The  Positivist  claims  a  place  in  front  of  the  stage  of 
life.  He  relies  for  his  understanding  of  the  play  on  what 
comes  to  him  in  the  way  of  representation.  He  deals  iX^ 
with  phenomena  and  not  noumena.  He  does  not  know 
and  assumes  that  he  cannot  know  what  goes  on  behind 
the  scenes.  The  Kantian  has  a  position  back  of  the 
stage  where  in  the  midst  of  the  mechanism  of  cate- 
gories, analytic  and  synthetic  judgments,  and  paralogisms 
of  pure  reason,  he  hears  and  sees  with  a  foreign  under- 
standing, and  concludes  that  the  reality  cannot  be 
known.  The  Hegelian  alone  has  the  center  of  the  stage 
and  participates  in  the  action.  He  is  not  troubled  with 
the  problem  of  reality.  He  knows  that  the  play  is  gov- 
erned both  by  the  principles  of  unity  and  reason,  but 
he  inclines  to  the  fatalistic  view  that  the  movement 
follows  fixed  laws  of  dramaturgy,  that  the  unfoldment 
of  the  play  is  beyond  his  control.  The  position  of  both 
the  Kantians  and  Hegelians  has  changed.  The  Kantian 
now  assumes  that  the  mechanical  trappings  of  the  stage 
may  be  used  for  various  scenarios;    and  the  Hegelian 


xxii  INTRODUCTION 

has  come  to  believe  that  he  may  interpolate  lines.  The 
Positivist  has,  however,  not  changed  his  position;  he 
is  still  a  spectator,  although  a  critical  one. 

In  this  enumeration  of  schools  of  philosophy  of  law  the 
omission  will  be  noted,  of  course,  of  some  familiar  and 
not  unimportant  theoretical  viewpoints.  This  is  be- 
cause these  standpoints  are  absorbed  by  one  of  the 
leading  schools  (and  usually  the  Positivist  School),  or 
do  not  rise  to  the  universality  of  a  valid  philosophy,  or 
are  wholly  apart  from  a  philosophy  of  law.  Thus, 
ethnological  and  historical  jurisprudence  is  only  an 
auxiliary  of  philosophy  of  law;  the  psychological  theory 
in  its  various  aspects  never  rises  above  a  method,  a 
theory  or  a  department  of  science;  the  biological  theory 
seems  to  possess  only  an  analogical  and  descriptive  value; 
the  theological  view  overshoots  the  mark  of  philosophy; 
the  teleological  notion  is  swallowed  up  by  the  Positivist 
School ;  the  Natural  Law  standpoint  is  taken  into 
account  in  the  Neo-Kantian  School  in  most  of  its  recent 
variations,  and  in  its  eighteenth  century  form  is  dis- 
credited everywhere  exce])t  in  America;  the  purely  ethi- 
cal idea  of  law  resolves  itself  into  some  otiier  final  or 
mediate  theory;  the  last  observation  holds  also  for  the 
types  of  the  law  of  reason;  the  school  of  "free  legal 
inten^retation"  rests  either  on  a  method  or  combines 
elsewhere  —  only  once  or  twice  has  it  risen  to  a 
phil()soi)hic  attachment;  and  finally  the  imperative  or 
political  theory  of  law  rests  on  nothing  but  tlie  will  of  the 
lawgiver. 

Berolzhoimer's  ]iainstaking  work,  of  which  this  book  is 
the  second  volume,  is  tlie  most  im])()rtant  systeniatic 
colli rihiii ion  to  ])hilosoi)liy  of  law  since  Lasson's  "System 
der  Re(litsphilos<)])hi(',"  jjubHshed  more  than  twent\- 
years  earHcr.  In  this  vohnne  is  presented  everything 
(jf  interest  in  the  hislor\'  of  ])hiloso])h\-  ot  law  —  so  far  at 


INTRODUCTION  xxiii 

least  as  Germany  has  been  concerned.  The  Germans 
are  incHned  to  claim  sufficiency  unto  themselves  in  any 
department  of  philosophy,  and  perhaps  justly  so;  but 
the  almost  entire  lack  of  consideration  of  modern  philo- 
sophic thought  in  other  countries,  and  particularly  in 
Italy,  will  be  quickly  noted,  and  might  be  regarded  as  a 
defect  not  to  be  lightly  excused  in  an  author  who  has 
shown  such  immense  reading,  such  sound  legal  and  his- 
torical scholarship,  and  so  masterly  an  execution  of  a 
most  difficult  labor.  Taken  even  with  its  preponderant 
localization  of  treatment,  and  deducting  for  the  fact  that 
it  carries  a  philosophy  of  its  own  which  it  seeks  to  impress 
on  the  reader  at  every  point  —  even  with  these  allow- 
ances, Berolzheimer's  book  is  the  most  satisfactory 
treatise  on  the  history  of  philosophy  of  law  in  any  litera- 
ture. The  extent  of  the  author's  industry  may  be  appre- 
ciated when  it  is  seen  that  nearly  seven  hundred  authors' 
names  are  entered  in  the  original  work,  of  which  number 
about  two  hundred  receive  more  or  less  extended 
notice.  The  original  text  is  securely  fortified  by  an 
impregnable  defense  of  footnotes  and  arsenals  of  bibli- 
ographies. It  was  thought  desirable  in  this  translation 
to  eliminate  a  large  part  of  this  reference  apparatus. 

"Since  Kant,"  says  the  author,  "the  superstition  has 
grown  that  clear  and  simple  writing  is  not  philosophical." 
This  superstition  is  fairly  demolished  in  the  present 
original  text,  and  the  learned  translator  has  adequately 
completed  the  work  of  destruction  in  this  English  render- 
ing. If  a  comparison  may  be  forgiven,  we  might  say 
that  the  translator's  English  is  better  than  the  author's 
German. 

No  childbirth  is  so  heavy  with  labor  and  pain  as  the 
childbirth  of  an  idea.  "It  can  hardly  be  realized,"  says 
Berolzheimer,  "that  a  truth  so  near  and  so  apparent 
as  the  reciprocity  of  economics  and  law  should  so  tardily 


xxiv  INTRODUCTION 

find  a  place  in  science,  and  that  this  truth  is  even  yet 
combatted."  For  Berolzheimer,  philosophy  of  law  with- 
out an  economic  content  is  an  empty  vessel.  A  purely 
speculative  philosophy  of  law  based  on  categorical  impera- 
tives, intellectual  abstractions,  or  a  dialectical  process 
leads  to  nothing  in  this  world.  Neo-Hegelianism  cer- 
tainly means  idealism,  but  it  is  realistic  idealism.  It 
employs  the  methods  of  the  laboratory  sciences,  and 
supplements  their  statistical  and  experimental  results 
by  the  aid  of  comparative  law  and  legal  ethnology.  The 
economic  content  of  law  of  which  Berolzheimer  speaks 
is  not,  as  he  is  careful  to  explain,  the  material  conception 
of  Marx,  but  includes  all  the  factors  bearing  on  social 
life.  Law  is  the  form,  economics  is  the  material.  The 
economic  associates  are  one  with  the  citizens  of  the 
state ;  economic  subjects  are  identical  with  legal  subjects ; 
and  economic  objects  are  the  same  as  legal  objects. 
Accordingly,  he  says,  the  idea  of  the  just  on  its  formal 
side  is  the  object  of  philosophy  of  law,  and  the  idea  o 
the  just  on  the  material  side  is  the  object  of  economics. 

Ethics,  like  law,  is  an  artificial  force;  but  it  acts  on 
social  life  by  a  different  sanction.  Politics  is  (as  Berolz- 
heimer has  expressed  it)  the  small  change  of  philosophy 
of  law.  Philosophy  of  law  alone  is  fruitful  as  the  original 
source  of  political  ideas. 

In  another  place  ^  Berolzheimer  has  made  one  of 
those  interesting  and  illuminating  generalizations  sug- 
gestive of  the  genius  of  Maine  to  show  the  essential  rela- 
tivity of  law.  He  outlines  three  evolutionary  stagies  in 
the  cultural  progress  of  law  and  e.'onomics.  The  first 
is  the  period  of  the  confusion  of  religion  and  law,  in 
which  society  is  a  religious  association.  The  second  is 
the  aiietliical  stage,  in  which  law  breaks  away  entirel>' 

'  "l)fiilsclil;(ii(l   \oii    Ilculc,"   licrliii,    I'.tU). 


INTRODUCTION  xxv 

from  ethics.  The  classic  example  is  the  ancient  Roman 
"jus  civile."  In  the  third  step  of  evolution  there  is  a 
synthesis  of  law  and  morals.  Law  is  softened  and 
refined  by  the  ethical  notion,  which  is  fundamentally, 
as  he  tells  us,  nothing  other  than  the  humanitarian  idea. 

The  present  work  exhibits  the  progressive  steps  in  the 
development  of  this  humanitarian  thought  in  the  law, 
based  on  economics;  the  whole  modern  period  consist- 
ing of  a  variety  of  emancipation  processes  beginning 
with  the  separation  of  Church  and  State,  following 
with  the  emancipation  of  the  common  people,  and  end- 
ing with  the  economic  freedom  of  the  Fourth  Estate. 

We  are  seriously  concerned  with  the  past  because  of  our 
more  serious  concern  for  the  future.  The  world  now 
faces  new  economic  problems  of  peculiar  difficulty  and 
urgency.  Can  anything  be  more  stupid  than  our  legal 
treatment  of  such  questions  as  the  tariff,  the  trusts,  and 
the  labor  problem?  In  the  words  of  the  author,  "The 
extent  and  variety  of  these  problems  point  imperatively 
to  a  profounder,  scientific  preparatory  labor  which  can 
only  be  furthered  by  a  philosophy  of  law  and  economics." 


INTRODUCTION  TO  THE  TRANSLATED 
VOLUME 

By  Sir  John  Macdonell  ^ 


In  Germany  there  Is,  and  long  has  been,  a  vast  litera- 
ture treating,  under  the  title  "Philosophy  of  Law,"  of 
subjects  which  American  and  English  lawyers  rarely 
discuss.  Our  author  propounds  problems,  debates,  re- 
jects or  accepts  solutions  which  for  them  have  little 
interest;  as  to  some  of  them,  I  might  even  say,  no 
meaning.  Only  certain  minds  feel  strongly  the  need 
of  a  complete  conception  including  all  phenomena  in  a 
particular  region,  a  clear  view  of  all  the  facts  and  their 
fusion  into  a  whole.^  Those  who  have  been  bred  in  the 
study  of  English  law  rarely  experience  this  need,  which 
has  called  forth  the  literature  reviewed  in  this  book. 
They  do  not  inquire  into  the  justification  of  coercion, 
discussed  by  Stammler  and  many  other  writers ;  enough 
for  them  that  it  exists.  They  do  not  examine  the  rela- 
tions of  economics  to  law;  that  question  is  for  others. 
They  do  not  deal  with  the  proper  province  of  the  State; 
that  also  is  outside  their  inquiries.  I  am  tempted  to 
say  that  English  jurists  begin  at  the  point  where  many 
Continental  jurists  stop.     For  the  former,  philosophy 

^  Vice-chairman  of  The  Society  of  Comparative  Legislation,  co- 
editor  of  the  Journal  of  the  Society  of  Comparative  Legislation, 
Professor  of  Comparative  Law  in  University  College,  University  of 
London. 

2  "A  systematic  co-ordination  of  the  several  (social)  phenomena 
under  a  comprehensive  principle."     Stammler. 


xxviii  INTRODUCTION 

is  an  intruder.  They  look  with  some  suspicion  upon 
Jurisprudence;  they  will  not  look  beyond  it,  to  the 
fundamental  problems,  discussed  in  these  pages  with 
great  knowledge  and  wide  outlook.  That  whole  atti- 
tude has  become  untenable.  In  times  such  as  these, 
of  changes  profoundly  affecting  all  parts  of  law,  it 
is  essential  to  go  back  to  principles;  and  he  who 
would  not  be  the  mere  "leguleius"  must  be  the 
philosophic  jurist. 

As  understood  by  many  of  the  writers  whom  Dr. 
Berolzheimer  reviews,  the  Philosophy  of  Law  is  not 
jurisprudence  even  in  the  widest  sense  of  that  term; 
it  is  not  so  in  the  view  of  Dr.  Berolzheimer  himself. 
It  is  not  sociology  or  a  part  thereof;  our  author  and 
others  distinguish  it  therefrom;  they  show  that  sociology 
does  not  solve  the  chief  problems  with  which  they  are 
concerned.  It  is  not  historical  or  comparative  or  eth- 
nological jurisprudence.  "The  peculiarly  important 
philosophic  problem  of  the  origin  of  law  and  Government, 
comparative  law  cannot  be  expected  to  solve,  if  for  no 
other  reason  than  that  it  ever  finds  the  presence  of  law 
and  Government  as  a  pre-requisite  for  its  study."  The 
study  of  these  subjects  may  be  necessary  preliminaries 
to  a  philosophy  of  law,  but  they  are  not  identical  with 
it.  Nor  is  it  Ethics,  though  according  to  some  of  the 
autliors  noticed  in  these  pages,  many  of  the  problems 
of  both  are  the  same.  It  is  not  the  psychological  basis 
or  origin  of  law;  though  that  is  discussed  by  Dr.  Berolz- 
heimer and  many  of  the  authors  passed  in  review.  Nor 
is  this  diversity  wonderful.  There  being  no  agreement 
as  to  what  is  law,  ])erha])s  it  is  not  sur]irising- that 
writers  ai<'  iioi  ;il  one  as  to  what  is  the  ])hil()S()i)h>'  of 
law. 

What  then  is  the  i)lMl()S()])hy  of  law?  'I'ho  answers 
(il   iIh'  iiiaiiN   uiilhors  who  ai"e  ])asse(l  in  rexiew  in  these 


INTRODUCTION  xxix 

pages,  though  very  diverse,  agree  as  to  the  vastness  of  the 
subject.  "It  is,"  says  cne  answer,  "an  attempt  to  fur- 
nish the  key  to  all  the  problems  presented  by  legal  phe- 
nomena" —  which  would  embrace  everything  into  which 
law  enters.  According  to  Krause,  it  is  the  science  of 
law  and  the  State  in  pure  reason.  According  to  Lasson 
it  is  "the  doctrine  of  the  realization  of  the  idea  of  the 
good  in  human  will."  In  the  view  of  the  latter,  it  is  "a 
division  of  ethics."  It  touches  economics;  it  deals 
with  the  province  of  the  State.  "Philosophy  of  law  is 
the  search  of  first  and  supreme  principles,  while  general 
jurisprudence  recognizes  similarities  of  fact,  of  ho- 
monyms, and  does  not  consider  the  reasons"  (Miraglia). 
There  are,  no  doubt,  narrower  definitions.  Wundt  in 
his  "Philosophische  Studien"  classifying  the  sciences 
which  deal  with  the  products  of  human  intelligence,  places 
the  philosophy  of  taw  along  with  Ethics,  .Esthetics,  and 
the  .  Philosophy  of  Religion.  According  to  Dahn,  a 
writer  of  great  acuteness,  it  is  the  rational  and  neces- 
sary element  of  law,  which  but  for  the  ambiguous  word 
"rational"  closely  corresponds  to  the  ordinary  defini- 
tion of  jurisprudence.  The  wider  definitions,  whic'i 
predominate,  bring  us  back  to  something  like  Ulpian's 
definition :  "Jurisprudentiaestdivinarum  atque  humana- 
rum  rerum  notitia  justi  atque  injusti  scientia."  These 
fundamental  questions  are  discussed  by  Dr.  Berolz- 
heimer  in  a  work  of  remarkable  learning,  a  striking 
example  of  the  thorough  and  encyclopedic  manner  in 
which  German  investigators  go  to  work;  an  impressive 
rebuke  to  those  who  neglect  the  labors  of  their  predeces- 
sors and  who  are  apt  to  confound  with  true  discoveries 
what  is  novel  to  them  only.  I  have  before  me  as  I 
write  the  works  of  Stahl,  Krause,  and  Lasson,  dealing 
with  the  Philosophy  of  Law.  They  are  not  comparable 
with  this  volume  in  point  of  research. 


XXX  INTRODUCTION 

I  should  not,  however,  be  stating  my  opinion  with 
sincerity  if  I  did  not  add  a  few  qualifying  words.    Some 
of  our  author's  criticisms  seem  to  me  to  be  defective; 
it  could  not  be  otherwise  in  so  vast  a  review.     Justice 
is  not  done  to  Hobbes,  or  Bentham,  or  Austin,     Juris- 
prudence  has  been  cleared  by  each  of  these  writers,  of 
ambiguities  and  false  analogies.     It  is  too  little  to  say 
of  Austin's  contributions  that  "they  consider  the  funda- 
mental   questions  of  legal  science  rather  than  those  of 
legal  philosophy."     It  is  not  without  interest  that  some 
writers    who    have    lately    influenced    jurisprudence    in 
Germany   have  done  so  by  adopting  substantially  the 
methods  and  conclusions  of  Austin;    I  have  in  view,  in 
particular,  Binding.     His  "fundamental  idea,"  remarks 
Dr.  Berolzheimer,  "that  the  imperative  norm  forms  the 
essence   of  law  is  a  permanent  contribution  to  legal 
philosophy,"  is  a  restatement  of  Austin's  chief  position. 
Full  justice  is  not  done  (to  name  a  very  different  writer) 
to  Gans.     I   have  found  his  history  of  inheritance  full 
instruction.     He  had  in  no  small  degree  the  fine  historic 
sense  of  his  master,  Hegel's  power  of  discovering  the 
great  streams  and  movements  of  events.     I  take  leave 
to  question  the  statement:    "It  (Gans's  book)  had  no 
influence  upon  the  development  of  legal  philosophy." 
Nor  do  I  think  that  our  author  has  accurately  appre- 
ciated the  value  of  Bachofen's  teaching,  or  Ihering's; 
he  has  over-estimated  the  positive  results  of  the  inquiries 
of  the  former,  and  imdcr-rated  the  merits  of  the  latter. 
The  evidence  for  the  general  existence  of  "Mutterrecht," 
does  not,  to  say  the  least,  increase;   the  influence  of  the 
"Geist  des  römischen  Rechts"  was  never  greater  than 
now.     It  will  seem  to  some  tliat,  though  Ihering's  legal 
philosophy  is  not  the  whole  truth,  it  is  an  important 
])art  of  it. 

A  furllur  criticism  may  be  added.     There  is  in  these 


INTRODUCTION  xxxi 

pages  a  mixture  of  many  diverse  things.  Whatever  be 
the  definition  of  the  Philosophy  of  Law,  a  fivefold  task 
awaits  the  investigator:  first,  to  trace  the  origin  of  law 
to  its  sources  in  human  nature,  whether  the  "appetitus 
socialis"  of  Grotius,  or  "desire  of  the  communal  life  of 
man"  of  Wundt,  or  the  pleasure  in  exercising  power; 
in  other  words,  to  solve  certain  psychological  questions; 
next,  to  connect  law  with  the  society  and  circumstances 
of  the  time  in  which  it  originates  or  exists;  an  inquiry 
of  supreme  importance  if  law  be  "the  form  into  which 
substantive  relations  crystallize  under  the  influence  of 
economic  conditions  or  of  other  elementary  forces" 
{Bosanquet,  "The  Philosophic  Theory  of  the  State," 
p.  36) ;  further  to  analyze  the  ultimate  elements  of  law, 
for  example,  whether  coercion  is  an  essential  element; 
further  to  state  the  laws  (if  there  be  such)  of  its  growth ; 
lastly  to  discriminate  between  ethics  and  law.  Speak- 
ing frankly,  I  do  not  think  that  answers  are  to  be  found 
in  these  pages  to  all  these  questions,  and  the  results, 
valuable  though  they  are,  of  the  inquiries,  might  have 
been  more  valuable  if  the  various  answers  had  been 
kept  distinct. 

One  omission  may  be  noted:  our  author  has  virtually 
nothing  to  say  as  to  international  law.  And  yet  it 
must  be  included  in  any  rational  account  of  law,  or 
reasons  must  be  given  for  its  omission.  Nay,  more, 
being  one  of  the  latest  developments  of  law  and 
outside  most  of  the  older  definitions,  it  is  of  supreme 
interest  to  one  who  would  trace  the  essentials  of  law 
and  its  growth. 

I  add  one  further  observation  suggested  by  the 
author.  Mere  accumulation  of  facts  will  not  enable  the 
investigator  to  solve  these  problems.  But,  if  there  is  not 
to  be  much  cobweb-spinning,  he  must  know  and  keep  in 
close  contact  with  facts;    he  must  at  every  step  come 


xxxii  INTRODUCTION 

back  to  them.  Otherwise  he  will  give  us  the  "caput 
mortuum"  of  Scholasticism.  Our  author  justly  deplores 
the  fact  that  "after  Kant  philosophy  became  in  the 
main  a  specialty;  and  men  wrote  upon  ethics  without 
knowing  humankind  and  on  the  philosophy  of  law  with- 
out a  thorough  knowledge  of  law."  The  reader  who  has 
breathed  the  highly  rarified  air  of  the  speculations  in 
these  pages,  will  derive  pleasure  and  ])rolit  by  turning 
from  time  to  time  to  some  highly  concrete  question  of 
the  law  of  landlord  and  tenant  or  the  rights  of  parties 
to  a  negotiable  instrument. 

No  two  persons  will  extract  the  same  results  from  this 
vast  survey,  beginning  with  the  speculations  of  the 
Greek  philosophers  upon  law  and  ending  with  the  latest 
works  on  jurisprudence,  economics,  and  sociology.  I 
take  leave  to  indicate  these  as  in  my  view  among  the 
most  important : 

There  is  a  constant  or  often  renewed  attempt  to 
revive  in  a  new  form  the  conception  of  a  natural  law; 
of  a  "richtiges  Recht,"  of  a  law  to  which  legislation  may 
or  may  not  conform.  Writer  after  writer  discussed  in 
these  pages  makes  this  attempt.  They  may  mean 
thereby  "natural  laws  favoring  the  interest  of  the  race" 
(Ratzenhofer).  They  may  speak  of  such  a  law  as  a 
theoretically  just  law  under  em])irically  conditioned  cir- 
cumstances— -"a  natural  law  with  a  variable  content" 
(Stammler).  They  may  say,  "What  is  conformable  to 
natural  law  represents  the  absolutely  desirable" 
(Ratzenhofer).  They  may  have  us  view  "the  necessary 
factors"  in  law  as  opposed  to  the  accidental  (Brentano). 
They  may  say  with  Schopenhauer:  "The  conceptions, 
wrong  and  right,  as  cciuivalent  to  injury  and  non- 
iiijur\,  are  obvi(JUsly  independent  of  ])ositive  legisla- 
tion and  antecedent  to  it.  There  thus  exists  a  pure 
ethical  or  natural  law  and  a  ])urc  science  of  law  inde- 


INTRODUCTION  xxxiii 

pendent  from  all  statutes."  Many  agree  in  beli.:ving 
in  a  "lex  natural-s"  of  some  sort.  It  might  be  better  to 
break  with  old  associations  and  to  annex  this  province 
in  part  to  ethics  and  in  part  to  politics;  but  inveterate 
usage,  on  the  Continent  at  all  events,  terms  it  law. 
No  one  now  supposes  that  there  is  a  "lex  seterna  et  uni- 
versa"  in  the  sense  that  certain  laws  are  found  every- 
where and  at  all  times ;  history  and  ethnological  inquiries 
dispose  of  that  assumption.  Nor  is  it  possible  to  evolve 
a  priori  from  a  few  principles,  as  jurists  of  the  seven- 
teenth and  eighteenth  centuries  conceived,  a  system  of 
law.  Criticising  the  shortcomings  of  Pufendorf 's  system, 
Leibnitz  remarks  that  he  should  like  to  see  a  work  in 
which  would  be  found  luminous  and  fruitful  definitions; 
in  which  the  conclusions  would  be  deduced  from  some 
principles,  logically  and  consecutively;  in  which  the 
foundation  of  all  actions  and  all  proper  exceptions  should 
be  established  in  an  orderly  fashion;  nothing  being 
forgotten,  needed  to  enable  those  beginning  the  study  of 
natural  law  to  supply  for  themselves  what  was  omitted 
and  to  decide  by  rules  and  principles  all  questions  that 
present  themselves.  Few,  if  any,  hope  that  this  can  be 
realized.  In  point  of  fact,  the  results  obtained  by  the 
writers  on  natural  law  who  have  attempted  this  work 
fall  far  short  of  this;  they  have  been  meagre  and  dubi- 
ous. But  it  is  true  —  and  this  is  brought  out  by  sev- 
eral of  the  writers  who  are  noticed  in  these  pages  —  that 
at  all  times  there  exists  a  sense  of  justice  which  approves 
some  kinds  of  legislation  and  condemns  others.  That 
sense  of  justice  is  in  some  societies  and  at  certain  times 
clearer  and  more  exigent  than  at  other  times.  "Just" 
and  "unjust"  are  ambiguous  words.  They  may  mean 
no  more  than  giving  what  the  law  awards.  They  may 
be  used  with  a  peculiar  meaning  in  a  theocratic  state  of 
society.     The  secularizing  of  jurisprudence  has  an  effect 


xxxiv  INTRODUCTION 

upon  their  meaning.  They  are  not  the  same  thing  for 
the  Greek  as  for  the  Hebrew.  But  there  is  a  sense  in 
which  justice  is  understood  by  all  and  at  all  times. 
It  insists  upon  certain  conditions.  A  law  which  con- 
demned accused  persons  without  hearing  them;  which 
took  away  property  from  one  person  and  gave  it  to 
another  chosen  by  mere  caprice;  which  said  that  laws 
should  be  retrospective  —  such  measures  might  be 
passed  in  conformity  to  statutory  requirements;  they 
would  not  be  the  less  unjust.  I  borrow  from  Riimelin 
a  remark  as  to  this:  "It  (justice)  is  a  universal  critic; 
it  makes  increasing  demands.  Not  content  with  'Jus- 
titia'  as  understood  by  Roman  law,  which  only  sought 
to  preserv^e  to  each  his  own,  it  strives  that  the  rights 
and  benefits  which  each  should  have,  accord  to  his 
merits."  That  fact  —  the  sense  of  justice  everywhere 
present  and  always  either  growing  or  declining  — -  is  the 
second  pillar  of  "natural  law"  as  understood  by  modern 
jurists. 

It  has  been  said  that  "natural  law"  is  the  ghost  of 
natural  religion;  it  might  be  described  as  the  embodi- 
ment or  evolution  of  justice.  To  find  a  natural  relation 
between  certain  conditions  of  society  and  certain  jiioral 
ideals;  to  study  the  growth  of  the  conception  of  justice 
and  to  ascertain  the  elTects  —  that  is  the  hope  of  many 
and  is  not  unattainable.  It  is  notable  that  the  equiv- 
alent of  "lecjuitas"  and  "naturalis  ratio"  reappears 
in  modern  Codes  ^  Bentham,  the  enemy  of  natural 
law,  as  understood  in  the  eighteenth  centiuy  applied 
to  all  law  tlie  utility  test;  wliich  is  natural  law  in 
another  f(jrni. 

I  note  a  fresh  conclusion,  wlii(  h  is,  ihat  society  at  any 
giveii  time  is  a  whole  and  of  a  i)iece;  that  there  does 
exist  a  necessary  rclalion  between  law  at  any  time  and 

'  See,  for  exampk-,  Artii  Ic  1  of  "Code  Civil  Suisse." 


INTRODUCTION  xxxv 

the  existing  society;  that  all  hiw  is  relative  to  some 
existing  society;  that,  though  there  is  no  absolute  law 
suitable  for  all  times  and  places,  given  certain  economic 
conditions,  certain  forms  of  family,  a  certain  ethical 
creed,  there  will  be  laws  corrCvSponding  thereto.  There 
is  no  escaping  this  necessity.  A  ruler  may  try  to  impose 
his  will  in  capricious  fashion.  But  everyone,  even  the 
ruler,  is  a  child  of  his  time  and  cannot  overstep  certain 
limits.  (Bruns-Lenel  Encyclopädie,  I,  76)  The  law  is 
not  a  robe  or  dress  changeable  at  will;  it  is  very  part 
of  the  body  social.  Even  the  composers  of  Utopias  are 
circumscribed  and  are  the  creatures  of  their  circum- 
stances. In  the  "Republic"  and  the  "Laws"  are  im- 
bedded much  of  the  Athenian  law  of  Plato's  age.  More 
and  Campanella  are  unconsciously  in  their  political 
romances  thinking  of  their  own  time.  All  hangs  to- 
gether—  law,  ethics,  religion,  economics. 

Again,  I  borrow  from  Riimelin  a  statement  of  this 
view:  "Das  es  überhaupt  eine  Rechtsordnung  giebt, 
dass  die  gesammte  Staatsmaschine  nicht  still  steht, 
sondern  geht,  dass  die  Räder  ineinander  greifen,  ist 
nicht  etwas  Erzwingbares  sondern  etwas  Thatsächliches" 
("Reden,"  Neue  Folge,  337).  There  is  a  social  "Ord- 
nung" and  a  "Rechtsordnung"  corresponding  thereto. 
One  great  advance  has  been  to  realize  this  necessary 
connection ;  while  breaking  with  the  idea  of  a  universal 
and  immutable  natural  law,  to  grasp  the  idea  of  law  as 
constantly  and  necessarily  changing  in  harmony  with 
the  changing  national  life.  And  that  natural  life  is  not 
a  loose  collection  of  fortuitous  elements,  "No  con- 
traction or  'Zusammenhang'  of  'disjecta  membra'  will 
ever  make  a  living  whole.  This  is  the  truth  that  the 
whole  eighteenth  century  fails  to  grasp  and  that  the 
nineteenth  has  taught  us  to  appreciate  fully."  ^ 

1  Ward,  "The  Realm  of  Ends,"  p.  120. 


XXX  vi  INTRODUCTION 

I  state  as  a  further  result  to  be  extracted  from  the 
elaborate  review :  In  the  opinion  of  the  great  majority  of 
the  authors  considered,  the  functions  of  Government 
cannot  be  confined  to  the  maintenance  of  peace  and 
order.  It  is,  and  must  be,  an  instrument  of  culture. 
It  would  seem  as  if  with  the  decline  of  the  power  of  the 
Church,  the  State  were  obliged  to  take  over  some  of  the 
interests  which  the  former  ought  to  guard.  And  so 
we  have  such  expressions  as  that  borrowed  from  Cohen 
("Ethik  des  reinen  Willens"):  "Justice  must  be  main- 
tained as  a  guide  to  virtue ;  and  its  constant  progress  is 
possible  only  through  the  instrument  of  law  and 
progress."  (125.)  Positive  law  is  "  a  coercive  effort 
t  )wards  Justice"  (Stammler). 

If  humanity  is  to  get  a  great  lift  upwards  all  must 
aid,  including  the  representative  of  the  will  of  all.  The 
constant  progress  of  justice  is  "possible  only  through 
the  instrument  of  law  and  Government."  "Laissez 
faire"  is  arrested  development. 

I  note  another  conclusion  to  be  deduced  from  the 
examination  of  the  writings  of  the  long  list  of  authors, 
and  especially  the  moderns.  There  is  a  new  conception 
of  liberty  which  it  is  the  aim  of  law  to  carry  out.  Much 
has  been  written  about  political  freedom;  freedom  to 
speak,  write,  meet,  form  associations,  enter  into  con- 
tracts —  in  other  words,  protection  against  external 
pressure  and  freedom  to  do  as  one  likes.  It  may  mean 
also  the  minimum  amount  of  interference  comparable 
with  each  being  free  to  do  as  he  likes;  regulations  im- 
posed U]K)n  all  citizens  in  the  interest  of  all. 

But  there  is  another  conception  of  it  as  freedom  for 
the  development  of  all  human  faculties;  freedom  not 
merely  from  violence  or  tyranny  and  external  pressure, 
but  freedom  from  the  pressure  which  checks,  stunts  and 
impoverishes  the  best  in  human  nature;   freedom  which 


INTRODUCTION  xxxvü 

enables  one  to  say,  "We  can  do  what  we  ought."  There 
is  the  conception  of  the  larger  liberty,  the  higher  liberty; 
the  removal  of  all  that  stands  in  the  way  of  the  full 
development  of  man.  Originating  in  philosophy,  this 
conception  has  come  to  be  recognized  as  one  of  the 
objects  of  law.  "Law  is,"  Kant  said,  "the  aggregate 
of  the  conditions  under  which  the  arbitrary  will  of  one 
individual  may  be  combined  with  that  of  another  under 
a  general  inclusive  law  of  freedom."  In  such  sentences 
as  these  is  the  starting  point  of  a  new  conception  of  the 
province  of  the  State  and  the  functions  of  law.  Certain 
writers  —  notably  Hegel  —  have  familiarized  jurists  with 
the  conception  of  the  State  as  realizing  freedom.  I 
cannot  better  express  this  idea  than  in  the  words  of 
Durkheim:  "II  se  trouve  que  la  liberte  eile  meme  est  le 
produit  d'une  reglementation.  Loin  d'etre  une  sort 
d'antagonisme  de  Taction  sociale,  eile  en  resulte.  Elle 
est  si  peu  une  propriete  de  1  etat  de  nature  qu'elle 
est  au  contraire  une  conquete  de  la  societe  sur  la 
nature."^ 

Yet  another  result:  the  secularization  of  law.  Con- 
nected with  religion  in  all  primitive  communities,  in 
some  most  intimately  connected  therewith,  it  becomes 
more  and  more  separated  therefrom.  "La  religion 
embrasse  une  portion  le  plus  en  plus  petite  de  la  vie 
sociale.  Ä  I'origine  eile  s'etend  ä  tout"  (Durkheim).  The 
supernatural  sanctions  of  law  decrease.  Its  chief  sup- 
port is  the  prevailing  public  opinion.  The  oracles 
become  dumb,  but  conscience  speaks,  and  where  law  is 
respected  and  jurisprudence  is  studied,  speaks  more 
and  more  clearly.  Akin  to  this  change  is  the  separation 
of  law  and  ethics;  a  process  complete  in  certain  branches 
of  the  former,  but  still  in  certain  others  (for  example, 
in  international  law)  not  fully  carried  out. 

i"De  la  Division  du  Travail  Social,"  (1893),  p.  433. 


xxxviii  INTRODUCTION 

I  note  a  further  conclusion  of  importance  in  view  of 
the  claims  of  sociology.  No  mere  statement  of  facts, 
however  general  in  terms,  is  sufficient;  the  element 
"ought"  must  be  included;  consequently  sociology  of 
itself  is  insufficient  as  a  full  philosophy  of  law;  any  theory 
which  does  not  account  for  the  ought,  must  be  insuffi- 
cient. The  attempts  of  Ratzenhofer  and  others  to 
found  thereon  a  legal  philosophy  have  failed.  Ethics  are 
not  merely  higher  physics.  Upon  this  subject  our  author 
justly  remarks:  "The  definiteness  of  legal  concepts 
gives  way  to  the  foggy  confusion  of  social-political, 
social  reformatory,  and  social  ethical  discussions,  fer- 
tile in  proposals  that  prove  to  be  valueless  and  ineffec- 
tive when  philosophically  tested.  A  return  to  legal 
and  economic  philosophy  remains  the  sole  scientific 
procedure."  ^ 

My  last  observation  is  this:  There  is  a  philosophy  or 
spirit  of  law  deeper  than  that  of  Montesquieu.  He  did 
much  to  get  beneath  the  surface  of  law;  to  trace  its 
roots  and  relationship;  to  show  that  mere  legal  analysis 
was  imperfect;  that  the  parts  of  national  life  were  united 
to  each  other.  His  work  has  been  continued  and  ex- 
tended. "The  generalities  of  Jurisprudence,"  it  has 
been  said,  "are  vitalized  and  completed  by  the  work  of 
the  science  of  culture"  (Bosanqnet,  "Philosophical  Theory 
of  the  State,"  41).  Dr.  Berolzheimer's  work  enables  us 
to  ascend  to  a  height  from  which  we  can  see  law  as  an 
ever  present  part  of  an  ever  flowing  stream. 

'  One  of  the  latest  attempts  to  reduce  jurisprudence  to  a  branch 
of  sociology  is  made  by  M.  Rolin  ["Prolegomenes  ä  la  science  du 
Droit"  (1911)]:  "La  sociologie  est  I'etude des  adaptations  de  I'homme 
:\  la  vie  en  socirt r.  I.c  droit  est  une  de  ces  adaptations,  celle  qui  ä 
liiiiir  1)111  (Ic  coinhattrc,  par  la  contrainte,  les  elTets  ou  les  causes  de 
( crtains  drfauls  iJ'ddaptdtioii,  jtt^cs  intolerahle.s"  (p.  4.)  Expressed 
in  words,  the  elliical  element  returns  in  the  phrase  italicized. 


NOTICE  OF  THE  AUTHOR'S  LIFE 
AND  WORKS 


Fritz  Berolzheimer,  Jur.  D.,  was  born  January  3,  1869. 
He  is  managing  editor  of  the  "Archiv  für  Rechts-  und 
Wirtschaftsphilosophie"  (now  in  the  fifth  volume),  the 
world's  leading  journal  of  philosophy  of  law;  president 
of  the  International  Society  of  Legal  and  Economic 
Philosophy  (Berlin) ;  and  joint-editor,  with  Dr.  Paul 
Laband  and  six  other  eminent  jurists,  of  the  "Handbuch 
der  Politik,"  now  being  issued  (Rothschild,  Berlin). 

The  present  volume  is  the  second  of  his  five-volume 
work  published  by  Beck  at  Munich  (1904-1907)  under 
the  title  "System  der  Rechts-  und  Wirtschaftsphiloso- 
phie." Volume  I  of  this  work  (pp.  xii,  327)  is  a 
philosophical  introduction  which  treats  the  theory  of 
knowledge;  volume  III  (pp.  xi,  370)  deals  with  the  phil- 
osophy of  the  State  including  the  fundamental  principles 
of  politics;  volume  IV  (pp.  x,  335)  deals  with  the 
philosophy  of  property  and  commercial  transactions; 
and  volume  V  (pp.  ix,  280)  treats  the  philosophy  of 
crime  and  punishment.  He  is  also  author  of  "Rechts- 
philosophische Studien  (Munich,  1903);  "Die  Entgel- 
tung im  Strafrecht"  (Munich,  1903);  "Deutschland  von 
Heute"  (Berlin,  1909);  "Die  Gefahren  einer  Gefühls- 
jurisprudenz in  der  Gegenwart"  (Berlin,  1911);  and 
numerous  smaller  writings  which  have  appeared  in  vari- 
ous German  publications.  He  is  one  of  the  most  active 
and  best  known  of  the  Neo-Hegelians  among  legal  philoso- 
phers, and  has  been  one  of  the  most  efficient  agents  in 
the  new  German  awakening  of  Philosophy  of  Law. 


AUTHOR'S  PREFACE 


The  present  volume  treats  of  the  historical  evolution 
of  the  philosophy  of  law  and  economics  in  their  bearing 
upon  contemporary  interests  and  movements.  The 
political  and  legal  institutions  of  former  periods  are 
included  only  in  so  far  as  they  show  influence  upon  later 
developments.  Avoiding  the  usual  text-book  account 
of  the  successive  contributions  to  the  philosophy  of  law, 
I  have  confined  the  presentation  to  that  of  the  successive 
cultural  stages  in  terms  of  their  distinctive  ideas,  prin- 
ciples, conceptions,  and  doctrines,  and  of  their  practical 
issues  and  demands.^  For  this  purpose  the  historical 
survey  must  go  back  further  than  the  customary  point 
of  departure  in  ancient  Greece,  and  include  the  legal  and 
economic  institutions  of  Egypt,  Assyria,  India,  Judea, 
and  Phoenicia,  from  which  the  theory  and  practice  of 
the  Grseco-Roman  legal  philosophy  were  derived.  The 
emphasis  is  to  be  placed  not  upon  the  doctrines,  but 
upon  the  form  and  development  of  the  legal  principles 
which  they  illustrate.  I  have  considered  the  philosophy 
oi  law  not  from  without,  as  summarized  in  the  presenta- 
tions of  writers  on  legal  philosophy,  but  from  within, 
as  a  natural  and  cultural  product.  While  philosophers 
stimulate  and  lead  their  contemporaries,  they  are  them- 
selves products  of  the  culture  of  their  day;  for  they 
reflect  the  limitations  of  the  available  data  and  scientific 

^  Theoretical  philosophy  emphasizes  in  the  historical  survey 
the  question:  How  shall  the  philosopher  proceed?  What  shall  be 
his  method?  But  for  the  purposes  of  practical  philosophy  the 
chief  question  becomes:  What  results  does  he  find?  What  is  the 
outcome  and  the  bearing  of  his  conclusion? 


xlii  AUTHOR'S   PREFACE 

knowledge,  and  follow  current  intellectual  trends. 
Knowledge  conditions  the  methods  and  range  of  facts 
and  systems  by  means  of  which  truth  is  extended;  the 
stage  of  culture  influences  the  general  position,  and  the 
direction  and  mode  of  advance  of  practical  philosophy. 
It  is  the  intellectual  attitudes,  as  they  find  expression 
from  time  to  time,  that  have  a  larger  importance  for  the 
philosophy  of  law  and  economics  than  have  the  doctrines 
and  arguments  of  individual  philosophers,  whose  chief 
value,  indeed,  lies  in  their  ser\ice  in  presenting  formu- 
lations of  such  general  views.  Moreover,  theoretical 
principles  are  of  secondary  importance  in  comparison  to 
the  political  embodiment,  to  which,  in  periods  of  agita- 
tion and  progress,  such  philosophies  aspire. 

Such  then  is  my  task;  and  if,  despite  the  valuable  aid 
afforded  by  the  efforts  of  my  predecessors  ^  in  this  field, 
It  has  proven  to  be  a  difficult  one,  the  difficulties  must 
serve  to  excuse  the  imperfections  of  my  work.  The 
emphasis,  in  the  historical  portions,  of  interpretations 
that  bear  out  my  general  philosophical  position,  hardly 
needs  justification.  Law,  government,  morality,  cus- 
tom, and  social  regulation,  are  artificial  forces  register- 
ing accomplished  advances  in  intellectual  development; 
and  the  historical  illustrations  serve  to  support  my 
views  of  the  forces  directing  the  philosophy  of  law  and 

*A  commendable  essay  of  (his  type  is  that  of  Ahrens,  "Natiir- 
recht,"  Vol.  1,  sixth  edition,  Vienna  1S70,  pj).  13  seq.  In  this  he 
gives  a  brief  snrvcy  of  Oriental  civilization.  But  since  his  day  new 
discoveries  have  bronght  forward  notable  information  which  must 
be  utilized  for  its  bearing  upon  legal  philosophy.  He  contributes 
careful  interjiretalions  of  ("»reck  and  Roman  law;  yet  here  likewise 
his  expositions  must  be  supplemented  with  reference  to  recent 
interests.  Since  Lasson's  work  in  1882  there  has  been  no  compre- 
hensive survey  of  legal  philosojihy. 

fA  work  bearing  upon  this  field,  but  with  closer  reference  to 
economics,  is  that  of  llaney.  —  Editor's  Note.l 


AUTHOR'S  PREFACE  xHii 

economics,  as  well  as  to  survey  the  philosophical  stages 
of  development.  If  such  development  proves  that  the 
trend  of  civilization  is  towards  the  increase  of  human 
efficiency  by  establishing  the  artificial  institutions  of  law, 
government,  religion,  ethics,  and  social  organization, 
then  the  same  inductive  evidence  applies  to  the  inter- 
pretation of  law  and  morality  as  equally  artificial 
achievements;  and  the  later  volumes  of  this  work  may 
proceed  deductively  to  apply  this  position  to  the  insti- 
tutions of  law,  the  functions  of  economics,  and  the 
foundations  of  ethics. 

The  utilitarian  attitude,  as  presented  by  Ihering,  holds 
that  progress  is  the  issue  of  conscious  rational  and 
deliberate  striving.  The  contrary  is  more  nearly  true. 
When  we  consider  the  larger  cultural  movements  of 
ancient  and  modern  times,  we  appreciate  that  the 
actual  beliefs  by  means  of  which  the  masses  are  forced 
from  their  political  conservatism,  and  won  over  to  a 
new  form  of  government,  cannot  be  considered  object- 
ively valid.  We  observe  that  the  reasons  advanced  in 
defense  of  the  new  movements  and  in  opposition  to 
tradition,  whether  in  religion,  in  law,  or  in  economics, 
are  found  in  the  light  of  later  development  to  lack  an 
objective  basis.  Yet  such  intellectual  movements  can- 
not accomplish  their  mission  without  the  support  of  the 
real,  though  misinterpreted  motives,  which,  in  turn, 
often  seek  a  false  goal.  History  shows  that  the  ends 
striven  for  and  attained  are  not  correctly  formulated  in 
consciousness;  the  alleged  purpose  and  the  achieved 
accomplishment  are  rarely  the  same.  Indeed,  one  may 
even  dignify  this  observation  by  making  of  it  a  principle 
of  unconscious  or  disguised  motivation. ^ 

In  the  progressive  development  of  law  there  may  be 

1  Köhler,  "Recht,  Glaube,  Sitte"  (Grünh.  Z.,  Vol.  19,  1892,  pp. 
561-612). 


xliv  AUTHOR'S  PREFACE 

distinguished  a  foreground  occupied  by  rhetorical 
accounts  of  the  steps  accomplished  and  tlie  reforms 
proposed,  and  a  more  solid  background  of  working  forces 
that  determine  the  real  strength  of  the  movement. 
Writers  on  the  philosophy  of  law  generally  emphasize 
the  former  by  giving  an  account  of  the  contributions  of 
the  greater  and  lesser  leaders;  historians  emphasize  the 
latter  in  their  descriptions  of  related  cultural  conditions. 
It  is  the  second  and  more  difificult  task  that  must  be 
undertaken  by  the  student  of  the  philosophy  of  law. 
Illusion  and  error  may  even  serve  a  purpose  in  intel- 
lectual progress;  and  truth  often  comes  to  its  own 
through  the  medium  of  fallacy.  Yet  such  fallacies, 
common  in  periods  of  spiritual  unrest,  differ  in  trend  and 
temper  from  consciously  entertained  deceptions.  The 
latter  are  antagonistic  to  the  interests  of  culture,  while 
illusions  ^  are  conservative  of  cultural  ends.  This 
applies  as  well  to  government  and  to  law;  for  it  will  be 
recalled  that  historically,  political  power,  legal  regula- 
tion, and  customs  were  popularly  conceived  as  expres- 
sions of  the  divine  ^  will.  The  philosophy  of  law  is 
ready  to  accept  this  as  an  historical  fact,  but  finds  the 
true  meaning  in  the  interpretation  thereof.^ 

^  For  errors  that  have  proven  conducive  to  intellectual  progress 
I  shall  use  the  technical  term,  illusions. 

Although  I  discovered  and  developed  this  conception  independ- 
ently, it  is  by  no  means  novel.  In  the  preparation  of  this  work  I 
accidentally  came  upon  the  work  of  Georg  Adler,  "Die  Bedeutung 
der  Illusionen  für  Politik  und  soziales  Leben,"  Jena  1904.  Adler's 
I  riority  of  statement  I  gladly  acknowledge. 

"^  One  is  reminded  of  Nietzsche's  phrase:  "Philosophy  "docs  not 
!  uffice  for  the  masses.  They  demand  sanctity."  "Der  Fall  Wagner," 
Part  I,  Vol.  8,  Leipzig  1896,  p.  14. 

^  Dahn,  "Die  Vernunft  im  Recht,"  p.  27:  "In  the  consciousness 
of  the  people  the  legal  norms  ajjjK'ar  in  all  manners  of  disguise." 
Kohlcr  repeatedly  refers  to  the  same  idea. 


AUTHOR'S  PREFACE  xlv 

The  latter  portions  of  this  volume  present  a  survey 
of  economic  movements  of  modern,  highly  differentiated 
society.  While  approaching  the  problems  objectively 
and  without  prejudice  and  partisanship,  I  assume  a 
definite  position  in  regard  to  current  political  questions 
and  policies.  The  duty  of  an  investigator,  as  I  interpret 
it,  is  to  set  forth  plainly  what  he  considers  sound  and 
scientifically  defensible,  whether  or  not  his  subject  bears 
upon  the  political  contentions  of  the  day.  The  stages  of 
evolution  of  the  law  form  the  primary  consideration, 
but  the  economic  factors  have  not  been  overlooked; 
for  legal  progress  is  not  limited  to  the  formulation  of 
laws,  but  embraces  the  economics  and  social  institutions 
and  movements  which  vitalize  them.  The  reference  to 
my  political  views  may  be  justified  by  the  fact  that  the 
great  political  questions  and  platforms  are  essentials 
of  the  philosophy  of  law.  Philosophies  become  effective 
through  their  practical  issues;  ^  they  form  theoretical 
skirmishes  in  a  political  evolution  or  revolution  ;2    they 

^  The  work  that  gave  Grolius  his  reputation  was  conceived  and 
carried  out  primarily  as  a  political  treatise.  The  power  of  political 
documents  to  command  attention  appears  in  the  reputation  which 
Montesquieu  achieved,  while  his  contemporary,  Ferguson,  a  man  of 
no  less  distinction,  received  slight  consideration.  The  former 
proposed  fundamental  political  positions  and  the  latter  did  not. 
Similarly  Marx  and  Lassalle  held  the  eager  attention  of  the  public, 
while  those  who  were  merely  legal  philosophers  have  been  ignored 
and  forgotten. 

^  There  is  an  essential  difference  in  the  spirit  of  the  ancient  and 
of  the  modern  legal  philosophy.  The  Greek  citizen-class,  from  which 
the  most  of  the  philosophers  arose,  was  conscious  of  itself  as  an 
integral  part  of  the  civic  city-state.  It  was  therefore  only  through 
its  opposition  to  every  form  of  tyranny  that  the  Greek  economic 
philosophy  had  political  importance.  Apart  from  this,  ancient 
legal  philosophy,  especially  among  the  Greeks,  was  merely  a  legal 
appendix  to  ethics,  as  appears  particularly  in  Plato's  extreme 
emphasis  of  the  communal  spirit  as  opposed  to  an  over-individualism. 


xlvi  AUTHOR'S  PREFACE 

accomplish  their  purpose  as  a  poHtical  influence.  The 
appearance  of  a  new  poHtical  view  affects  legal  phil- 
osophy. The  difference  in  attitude  between  law  and 
politics  is  one  of  interest  and,  in  turn,  of  scope;  the 
broader  view  requires  the  larger  field  of  vision.  The 
subject-matter  of  the  philosophy  of  law  is  government, 
and  the  law  as  organized;  these  are  not  finished  con- 
structions, but  are  in  the  process  of  growth.  Accord- 
ingly philosophy,  equally  with  politics,  must  be  directed 
to  the  future. 

Legal  philosophy,  though  in  part  undesignedly,  in 
the  past  has  exerted  a  reforming  influence  upon 
politics,^  and  will  maintain  its  position  only  in  so 
far  as  it  continues  to  exert  it.  The  scientific  stand- 
ing of  the  philosophy  of  law  was  lost  when  vain 
dialectics-  were  substituted  for  tangible  results.  The 
philosophy  of  law  supplies  practical  jurisprudence  with 
a  special  method  whose  power  of  analysis  makes  possible 
the  solution  of  problems  too  complex  for  any  less  ade- 
quate instrument;  to  regain  its  proper  status  and  esteem 
it  must  again  assume  this  serviceable  function,  and  not 
follow  servilely  the  lead  of  practice.  It  may  well  begin 
with  the  inductive  study  of  law  and  economics,  but  must 
]5rocced  resolutely  to  its  rightful  philosophical  function 

It  had  no  iiidependcnt  status  and  was  more  a  theoretical  philosophy 
of  justice  than  a  practical  philosophy  cf  law  and  government.  It 
was  only  in  the  Middle  Ages  and  under  the  pressure  of  the  Church 
that  there  arose  a  longing  for  poHtical  freedom;  under  the  influence 
of  the  intellectual  emancipation  following  upon  the  Reformation 
there  was  inaugurated  the  great  process  of  enfranchisement  that 
found  its  consummali(jn  in  our  own  day. 

'The  history  of  legal  i)lnI()soi)hy  is  essenti<dl\'  the  history  of  the 
great  political  movemtiUs  of  liberation,  of  the  emancipation  of 
humanity.  Ancient  history  closes  with  the  advent  and  the  Chris- 
tian estahlishment  of  the  humanitarian  conception;  modern  times 
present  tlir  conipltl  iuii  of  iIk-  emancipation. 


AUTHOR'S   PREFACE  xlvii 

of  providing  the  rational  support,  the  directive  guidance 
of  theoretical  insight.^ 

Legal  philosophies  and  political  doctrines  arc  closely 
related.  My  own  position  reflects  and  supports  the 
emphasis  of  "class  interests,"  and  accords  to  social  and 
ethical  principles  the  position  of  a  corrective  influence 
to  counteract  the  unrestrained  self-seeking,  incident  to 
a  "laisser  faire"  policy. 

Owing  to  the  position  of  this  volume  as  part  of  a  pro- 
jected series,  I  have  supplied  an  Introduction  in  which, 
along  with  bibliographical  references,  I  have  presented 
the  conception  of  legal  philosophy,  the  method  which  it 
pursues,  and  its  demarcation  from  allied  disciplines. 
Literature,  so  far  as  it  bears  upon  the  philosophy  of  law, 
has  been  fully  utilized;  specific  contributions  to  the 
philosophical  aspects  of  law,  sociology,  and  economics, 
are  noted,  but  only  the  more  important  general  works 
on  philosophy  and  ethics  are  mentioned. 

Munich,  Easter,  1905. 

^  In  the  most  notable  philosophies  of  Plato  and  his  disciples,  as 
likewise  of  Kant  and  his  school,  reason  plays  a  predominant  part. 
But  the  ancient  rational  philosophy  correctly  interprets  the  nature 
of  reason,  while  the  modern  does  not.  For  Plato,  as  for  Aristotle, 
reason  is  the  capacity  to  interpret  the  nature  of  things.  For  Kant 
reason  is  pure  experienceless  thought.  My  own  philosophy  is  neo- 
Platonic  in  that  it  regards  reason  as  the  capacity  for  knowledge 
based  upon  conceptions  and  ideas.  This  view  involves  a  direct 
relation  with  the  philosophy  of  knowledge  as  laid  down  in  the 
Jewish-Christian  religion.  Man  is  a  being  endowed  with  the 
divine  spirit,  a  being  whose  knowing  and  thinking,  though  dependent 
upon  his  material  organization,  is  not  restricted  by  it,  but  is  capable 
of  abstracting  from  the  material  embodiment,  and  has  direct  access 
to  the  infinite  and  to  the  possession  of  true  ideas. 


TABLE  OF  CONTENTS 


INTRODUCTION 

Page 

j  1.     Conception  of  the  Philosophy  of  Law   1 

^  2.     Literature  of  the  Philosophy  of  Law 4 

\  3.     Conception  of  the  Philosophy  of  Economics    5 

§  4.     Demarcation  of  the  Philosophy  of   Law  from    Nat- 
ural  Law,  General  Jurisprudence,    Comparative 

Law,  and  Legal  Sociology  6  ^ ' 

1:   Philosophy  of  Law  and  "N-tural  Law"    Q^- 

2:   Philosophy  of  Law  and  General  Jurisprudence  9  •' " 

3:   Philosophy  of  Law  and  Comparative  Law  ....  12  (/ 

4:   Philosophy  of  Law  and  Legal  Sociology   14  / 

§  5.     Demarcation  of  the  Philosophy  of   Economics  from 
Political   Economy,   Social   Economy,   and    Social 

Ethics 16 

§  6.     The  Method  of  the  Philosophy  of  Law 17<^ 

§  7.     Law  and  Economics  20 

CHAPTER   I 
Origins  of  Oriental  Civilization 

§  8.     Ancient  Egypt 25 

§  9.     Babylonia  and  Assyria 32 

1:   Babylonian  and  Assyrian  Civilization 32 

2:  The  Code  of    Hammurabi 34 

§  10.     The  Vedic  Aryans    37 

§  11.     The  Jewish  State 40 

§  12.     The  Phoenicians     45 


1  CONTENTS 

CHAPTER   II 

The  Ancient  Commonwealth:  Greek  Civilization 

§  13.     The  Greeks  before  Plato 46 

1 :   Fundamental  Greek  Conceptions    46 

2:   Subjectivism  and  Objectivism   49 

3:   The  Pythagorean  Philosophy 51  >/ 

4:  The  Philosophy  of  Heraclitus 55  / 

5:  The  Sophists 56  ^ 

6:   The  Socratic  Philosophy bl     y 

§  14.     Plato  60  ^ 

1 :   The  Platonic  Conception  of  Virtue  and  Justice   .  60 

2:   Plato's  General  Philosophy     63 

3:   Practical  Justice  and  Social  Virtue    64 

4:  The  Ideal  and  the  Real  State   65 

5:  The  Influence  of  Plato 66      . 

§  15.     Aristotle   67  /^ 

1 :  The  Basis  of  Ethical  Conduct     67 

2:  The  Greek  Ari  tocrat     68 

3 :  Society  and  the  State     70 

4 :  Justice  and  Equity 72 

5:  The  Origin  of  Civic  Life    73 

§  16.     The  Post-Aristotelean  Period 74  t/ 

1 :  The  Cynics   74 

2:  The  Cyrenaics    75 

3 :  The  Stoics 75 

4:  The  Epicureans 76 

5:   The  Sceptics 77 

6:  The  Neo-Platonists  77 

CHAPTER   HI 

The  Civic  Empire  of  Ancient  Rome  and  the 
moralization  of  roman  l.wv 

§  17.     The  Roman  Peasant  State:  the  "Jus  Civile" 78/' 

1:    Rights:   Absence  of  Ethical  Factors 78 

2:   The  "Paterfamilias"asthe  Center  of  RomanLaw-  80 

§  IS.     The  Roman-Italian  State:   The  Rejuvenation  of  Law 

through  "/l'>|uitas"    82  • 

§  l!t.     The  Roman  Empire:    Introduction  of  the  Philosophy 

of  Law  through  Cicero     87  ■ 

§20.     The  iX'clinc  of  tile  Ancient  Empire:   Christian  Ethics  89/ 


CONTENTS 


,21. 


,22. 


,23. 


,24. 
25. 

,26. 

,27. 


,28. 


,29. 


CHAPTER   IV 
The  Bondage  of  Mediae valism 
The  Spiritual  Dominance  of   Rome   (St.  Augustine; 
Thonias_^Ä£}jjiaas ;     The    Doctrine    of   the   Two 

Swords) 

1:  The  Churcli  and  Greek  Philosophy   

2:  The  Philosophy  of  St.  Augustine   

3:  The  Philosophy  of  Thomas  Aquinas 

4:  The  Tenet  of  the  Two  Swords    

Economic  and  Social  Restrictions    

1:  The  Yeoman  and  the  Citizen  Class   

2:  The  Economic  Influence  of  the  Church 

3 :   The  Crafts  and  Trades 

More  Liberal  Trends  of  the  Middle  Ages    

1 :   Dante  Alighieri    

2:   William  of  Occam     

3:   Mar-ilius  of  Padua  and  the  Sovereignty  of  the 

People 

4:   Nicholaus  Cusanus   

5 :  The  Writings  of  Niccolo  Machiavelli    

CHAPTER  V 

Civic  Emancipation:  The  Rise  and  Decline  of 

"Natural  Law" 

The  Reformation  as  a  Stimulus  to  Individualism 

Hugo  Grotius 

The  Rebellion  against  Tyranny 

Legal  Philosophy  of  the  Seventeenth  Century 

1:  Hobbes 

2:   Pufendorf    

3:   Spinoza    

4:  Thomasius    

Legal  Philosophy  in  England    

1 :   Locke  

2:   Bentham 

3 :   Mill ;   Austin    

Legal  Philosophy  in  France    

1 :   Montesquieu    

2 :   Rousseau 

3:  Diderot  

4 :  Godwin  


93  ^^ 

93 

94 

101 

103 

103 

104 

106 

lOS'^ 

108-^ 

108^ 

109^ 

109 

110 


113'-^ 
115  i^ 
118^ 
122  i^ 
122  L^ 
124- 
127  ■.- 
132 
134  L- 
134  (^ 
137 
139 
141  i/ 

141  L^ 
143^^ 
152 
155 


lii  CONTENTS 

§  30.     Legal  Philosophy  in  Germany   156  V^ 

1 :   Leibnitz 156  / 

2:  Wolff  160  / 

3:  Frederick  the  Great 162  / 

§  31.     Mercantilists  and  Physiocrats 165 

1 :  The  System  of  Colbert    165 

2:   Quesnay  and  other  Physiocrats   167 

§32.     The  Classical  Economists:  Adam  Smith;   Ricardo...  170 
1:   Industrial    Development:     the     Economics    of 

Adam  Smith 170 

2:  Ricardo 174 

3:  Say 178 

4:   Malthus    178 

§  33.     Kant;  Fichte;  Schopenhauer 180  / 

1 :  Kant    180 

(a)  The  Historical  Position  of  Kant 180 

(6)   Kant's  Ethics    181 

(f)  Kant's  Philosophy  of  Law   189 

(d)  The  Origin  and  the  Purpose  of  the  State   ....  187 

{e)  The  Present  Significanceof  Kant 'sPhilosophy  188 

2:  Fichte 192  / 

(a)  The  Position  of  Fichte   192 

{h)  Fichte's  Philosophy  of  Law.- 194 

(c)  Fichte's  Philosophy  of  Economics 198 

{d)  Law  and  Culture 200 

{e)  Fichte  as  a  Statesman 201 

\  3 :  Schopenhauer 201 

§  34.     Schelling  and  the  Historical  School 204 

1 :  Schelling 204 

2:  Other  Representatives  of  the  Historical  School  211 

§  35.     I  legel  and  the  Hegelians 215  V^ 

1 :   Hegel's  Phil()S()i)hy  of  Law 215 

2:   Law  and  the  Human  Will 217 

3:   Hegel's  Dialectic    219 

4:  Hegel's  Conception  of  the  State 223 

5:   Fundamental   Legal   Ideas:    Person,   Property, 

Injury,  and  Crime   224 

6:  A  Crit  ical  Verdict  of  I  legel 228 

7:  The  Hegelians    232 


CONTENTS  Hü 

§  36.     Recent  Systems  of  Legal  Philosophy    233 

1 :  Stahl    233 

2:  Trendelenburg  238 

3 :   Krause 240 

4:  Ahrens 245 

5:  Herbart 248 

6:   Dahn 252 

7:  Lassen 255 

CHAPTER  VI 

The  Emancipation  of  the  Proletariat.     Encroach- 
ment UPON  THE  Philosophy  of  Law  by 
Economic  Realism 

§  37.     French  Communism    260 

1 :  Saint-Simon    260 

2:   Fourier    264 

3 :   Louis  Blanc    265 

4:   Communism,  Anarchism,  and  Socialism 267 

§  38.     German  Socialism    269 

1 :  Marx  269 

2:   Lassalle   274 

3:  Engels   276 

4:   Rodbertus 276 

5:  Bebel   278 

6:   Kautsky    279 

7:  Bernstein    280 

8:  A  Survey  of  the  Process  of  Emancipation 281 

§  39.     Anarchism    287 

1 :   Proudhon;  the  Older  View 287 

2:   Stirner;   Extreme  Individualism    289 

3:   Krapotkin;   the  Communistic  View    291 

4:   Bakunin;  the  Position  of  Violence 292 

5:  Tucker  and  Tolstoi;  Moderate  Anarchism    ....  297 

§  40.     Further  Types  of  Socialism    298 

1:   Menger 298 

2:   Loria    303 

3:  Sombart    304 


liv  CONTENTS 

CHAPTER   VII 

The  Sociological  Reconstruction  of  Legal 
Philosophy 

§  41.     The  Development  of  Sociology    308 

1 :  Comte  and  the  Beginnings  of  Sociology    308 

2:   Positivism  and  Sociology    313 

3:  The  Sociology  of  Spencer    317 

§  42.     Sociological  and  Social-ethical  Extremist?   323 

1 :  The  Conception  of  "Society" 323 

2:  Social  Ethics    331 

3:  Sociological  Ideals 333 

§  43.     Social  Utilitarianism 336 

1 :  Shaftesbury" 336 

2:   Ihering 337 

§  44.     The  Sociological  School 351 

1 :   Its  Distinctive  Position 351 

2:   Its  Precursors 352 

3:  Gumplowicz 356 

4 :  Ratzenhof  er   358 

5:   Recent     Representatives:     Tönnies,     Klöppel, 

Bergemann 365 

6:   Critical  Summary  of  the  Sociological  Position  ..  368 

7:  Applications  of  the  Sociological  Position    369 

(a)  To  Corporations 369 

ih)  Penology    372 

§  45.     Realistic  and  Historical  Trends  in  Political  Economy 

and  Sociology 375 

§  46.     The  Theory  of  Norms 381 

§  47.     Ethnological  Jurisprudence 387 

§48.     The  Reinstatement  of  Kant  and  Hegel;  v.  Hartmann  392 

1 :   Ne(>-KiUiLiaüi.sm    392 

2:   Neo-HeüdiiUiism 422 

3:   Hart  mann -  427 

§  49.     Psychological  AsjxTts  of  Law  and  Economics 431 

1 :  The  Psychological  Basis 431 

2:  Zitelmann 435 

3:  Jellinek 435 

4:   Criminal  Psychology 442 


CONTENTS 

i  50.     Recent  Surveys  of  Fundamental  Problems    446 

1 :  Merkel  and  his  Followers    446 

2:  Schmidt 450 

3:  Paulsen   451 

4 :  Bauman    453 

5 :  Schuppe    454 

51.     The  Influence  of  the  Principles  of  Evolution   456 

1 :  Social  Aristocracy;   Nietzsche 456 

2:   Evolutionary  Monism;  Haeckel 458 

3:  Evolution  and  Socialism  . 461 

1 52.     Class  and  State    ; 466 


LIST  OF  JOURNALS,  ETC.,   REFERRED  TO  IN  NOTES 

Griinhut's  Zeitschrift   für    das   Privat-   und   Öffentliche   Recht   der 

Gegenwart :  Grünh.  Z. 
Zeitschrift  für  Vergleichende   Rechtswissenschaft:  Z.  f.  v.   Rechtsw. 
Hirth's  Annalen  des  Deutschen  Reichs:    Hirth's  Ann. 
Beling's  Strafrechtliche  Abhandlungen:  Beling's  Abh. 
Zeitschrift  für  die  Gesammte  Straf rechtswissenschaf t :  Z.  f.  d.  G.  Str. 
Von    Holtzendorff- Kohler,    Enzyklopädie  der    Rechtswissenschaft: 

Enzyklopädie. 
SchmoUer's  Jahrbuch:  Seh.  Jahrb. 
Conrad's  Jahrbuch:  Conrad's  Jahrb. 
Braun's  Archiv   für    Soziale   Gestezgebung   und   Statistik:  Braun's 

A  rchiv. 
Avenarius,   Vierteljahrsschrift     für    Wissenschaftliche    Philosophie: 

Avenarius. 


The  World's  Legal  Philosophies 


The  World's  Legal  Philosophies 


INTRODUCTION 

CONCEPTION  OF  THE  PHILOSOPHY  OF  LAW.  —  LITERATURE  OF 
THE  PHILOSOPHY  OF  LAW.  —  CONCEPTION  OF  THE  PHILOSOPHY 
OF  ECONOMICS.  — DEMARC.A.TION  OF  THE  PHILOSOPHY  OF  LAW 
FROM  "NATURAL  LAW,"  GENERAL  JURISPRUDENCE,  COMPARA- 
TIVE LAW,  AND  LEGAL  SOCIOLOGY:  (1)  PHILOSOPHY  OF  LAW 
AND  "natural  LAW";  (2)  PHILOSOPHY  OF  LAW  AND  GENERAL 
JURISPRUDENCE;  (3)  PHILOSOPHY  OF  LAW  AND  COMPARATIVE 
LAW;  (4)  PHILOSOPHY  OF  LAW  AND  LEGAL  SOCIOLOGY.  —  DEMAR- 
CATION OF  THE  PHILOSOPHY  OF  ECONOMICS  FROM  POLITICAL 
ECONOMY.  SOCIAL  ECONOMY,  AND  SOCIAL  ETHICS. —THE  METHOD 
OF  THE  PHILOSOPHY  OF  LAW.  —  LAW  AND  ECONOMICS. 

§  1.  Conception  of  the  Philosophy  of  Law.  The 
philosophy  of  law  is  the  critical  study  of  formulated 
law.^  Leaving  to  practical  jurisprudence  the  deter- 
mination of  what  is  lawful,  the  philosophy  of  law  pro- 
poses the  problem  of  the  nature  of  the  law  itself.     It  is 

'  Parallel  definitions  are  given  by  Cicero,  "De  legibus,"  I,  5:  "Non 
ergo  a  praetoris  edicto,  ut  plerique  nunc,  neque  a  duodecim  tabulis, 
ut  superiores,  sed  penitus  ex  intima  philosophia  hauriendam  juris 
disciplinam  putas."  See  also  "De  legibus,"  I,  4,  at  the  end.  Others 
interpret  differently.  Hegel,  "Grundlinien  der  Philosophie  des 
Rechts"  (§  1,  p.  22),  remarks:  "The  philosophy  of  law  has  for  its 
subject  the  idea  of  law,  the  conception  of  law  and  its  realization." 
Stahl,  "Die  Philosophie  des  Rechtes,"  Vol.  1,  second  edition,  1847, 
(p.  1):  "The  philosophy  of  law  is  the  science  of  justice."  See  also 
Stahl's  preface  to  the  first  edition,  1830,  p.  xi.  Geyer,  "Geschichte 
und  System  der  Rechtsphilosophie  in  Grundzügen,"  Innsbruck, 
1863,    while   not   offering   a   definition,    says:     "Philosophy   is   the 


2  INTRODUCTION 

a  division  of  legal  science,  yet  belongs  equally  to  prac- 
tical philosophy.  The  jurist  considers  the  structure 
and  function  of  law;  the  philosopher,  its  underlying 
principles  and  causes.  The  interest  of  the  former  is 
centered  upon  the  content  of  the  law;  of  the  latter,  upon 

science  that  supplements  all  other  sciences  and  brings  them  to 
completion"  (p.  1);  "The  philosophy  of  law  is  a  division  of  ethics" 
(p.  3);  "The  philosophy  of  law  proposes  an  ideal  which  the  actual 
order  is  to  attain,  not  the  law  as  actually  prevailing"  (p.  3). 
Ahrens,  "Naturrecht,"  sixth  edition,  Vienna, —  1870  (Vol.  1,  p.  1): 
"The  philosophy  of  law  or  natural  law  is  the  science  which  derives 
the  supreme  principle  or  conception  of  law  from  the  nature  and  des- 
tiny of  man  and  of  human  society,  and  develops  a  system  of  legal 
principles  for  all  the  divisions  of  private  and  public  law."  Ahrens, 
"Cours  de  droit  naturel,"  VIII,  Leipzig,  1892  (Vol.  I,  p.  1):  "The 
philosophy  of  law  or  natural  law  is  the  science  that  sets  forth  the 
first  principles  of  law  as  conceived  by  reason  and  as  based  upon  the 
nature  of  man  considered  in  itself  and  in  its  relations  with  the  uni- 
versal order  of  things."  What  is  thus  characterized  is  not  legal 
philosophy  in  general,  but  the  legal  philosophy  of  Krause  and 
Ahrens.  Dahn,  "Über  Werden  und  Wesen  des  Rechts"  (II),  in  Z.  f.  v. 
Rechtsw.,  Vol.  III,  1881,  pp.  3  seq.,  §6,  designates  the  problem  of  the 
philosophy  of  law  as  that  "of  establishing  the  idea  of  law  and  the 
several  products  and  manifestations  of  legal  activity  as  a  mode  of 
manifestation  of  the  absolute  law.  Legal  philosophy  thus  attempts 
to  determine  and  present  the  inherent  logical  element  in  the  law." 
("Rechtsphilosophischer  Historismus.")  See  also  Dahn,  "Die  Ver- 
nunft im  Recht,"  Berlin,  1879,  pp.  13-15.  Also  §  36.  Lasson, 
"System  der  Rechtsphilosophie,"  Berlin  and  Leipzig,  1882  (pp.  1  and 
10):  "The  philosophy  of  law  is  a  division  of  ethics,  and  is  the  doc- 
trine of  the  realization  of  the  idea  of  the  good  in  human  will.  .  .  . 
Ethics  embraces  in  addition  to  the  philos()i)hy  of  law  the  co-ordinate 
divisions  of  the  philosophy  of  customs,  of  moral  philosophy  or  the 
doctrine  of  virtue,  and  the  doctrine  of  morality  or  the  moral  per- 
sonality. .  .  .  The  problem  of  the  philosophy  of  law  is  to  interpret 
existing  law  as  an  expression  of  reason  and  in  its  connection  with 
other  tendencies  and  phenomena  of  life."  Harms,  "Begriff,  For- 
men, und  Grundlegung  der  Rechtsphilosophie,"  edited  by  von  Wiese, 
Leipzig,  1889  (p.  21):  "Accordingly  the  philosophy  of  law  is  the 
science  of  the  presuppositions  and  fundamental  conceptions  of  an 


PHILOSOPHY  OF  LAW  3 

"the  spirit  of  the  law."  ^  The  philosophy  of  law^  stands 
in  intimate  relation  to  political  science  —  to  governmen- 
tal, social,  punitive,  commercial,  agricultural,  and  tariff 
regulations.^     Politics  considers  how  new  legislative  situa- 

empirical  study  of  law."  Bergbohm,  "Jurisprudenz  und  Rechts- 
philosophie: Kritische  Abhandlungen,"  Vol.  1,  Leipzig,  1892  (p.  103): 
"Wo  expect  the  philosophy  of  law  to  inform  us  as  to  the  inner 
nature  and  ultimate  basis  of  the  law  as  it  exists.  It  attempts  to 
furnish  the  key  to  all  the  problems  presented  by  legal  phenomena." 
/.  Köhler,  "Enzyklopädie  der  Rechtswissenschaft,"  1902  (p.  3): 
"The  philosophy  of  law  is  a  branch  of  the  philosophy  of  humanity, 
that  is,  of  that  philosophy  which  is  to  determine  the  position  of 
man  and  of  human  civilization  in  the  world  and  in  worldly  activi- 
ties. The  expressions  of  human  culture  reach  their  highest  point 
in  philosophy  in  that  they  thus  receive  their  interpretation  as  a 
part  of  the  cosmos;  the  same  is  true  of  the  law.  The  philosophy 
of  law  must  envisage  man  as  the  bearer  of  culture;  and  as  culture 
constantly  advances,  if  man  and  the  world  are  not  to  stagnate,  the 
philosophy  of  law  is  the  problem  of  interpreting  law  as  a  constantly 
developing  evolutionary  process."  And  again  (p.  9):  "We  must 
place  the  results  of  the  history  of  law  in  connection  with  the  general 
history  of  culture;  we  must  attempt  to  determine  the  significance 
of  the  history  of  culture  in  the  cosmos,  and  further  to  determine 
the  operation  of  legal  institutionsand  of  their  history  in  the  develop- 
ment of  culture,  and  thus  in  the  evolution  of  the  cosmos.  Only  in 
this  manner,  as  I  conceive  it,  is  a  legal  philosophy  possible."  Eisler, 
"Wörterbuch  der  Philosophischen  Begriffe  und  Ausdrücke,"  Berlin, 
1900  (p.  633):  "The  philosophy  of  law  is  the  systematic  study  of  the 
origin,  content,  and  import  of  the  conception  of  law  in  connection 
with  the  consideration  of  the  principles  of  government." 

•The  term  "spirit  of  the  law"  ("esprit  des  lois")  appears  first  in 
the  title  of  ikfoM/e5gMzVzi'5  well-known  work.  See  below,  §29.  Ihering 
(d.  1890)  adopted  it  for  his  work,  "Geist  des  Römischen  Rechts 
auf    den    verschiedenen     Stufen     seiner    Entwickelung." 

^  The  philosophy  of  law  is  related  to  the  encyclopedia  of  law 
which  furnishes  a  systematic  survey  and  arrangement  of  the 
material  of  law,  and  to  general  jurisprudence  which  presents  a  state- 
ment of  the  most  important  general  legal  principles  and  institutions 
as  they  occur  in  civilized  communities. 

2  See  below,  §  4. 


4  INTRODUCTION 

tions  —  such  as  those  created  by  the  telephone,  the 
automobile,  by  arbitration,  by  colonial  relations  —  may 
be  met;  it  faces  such  problems  as  measures  of  imme- 
diate regulation — "de  lege  ferenda."  The  philosophy 
of  law  is  concerned  with  the  "ratio  legis,"  with  the  gen- 
eral aspects  of  the  end  in  view,  and  of  the  ideal  concep- 
tion of  legislation.  The  two,  however,  are  not  sharply 
differentiated. 

In  courses  and  compendiums  of  law  the  philosophical 
aspects  are  commonly  considered  in  connection  with 
specific  legislation:  thus  the  philosophy  of  punishment 
is  considered  in  connection  with  the  laws  of  punishment, 
or  as  a  criticism  of  the  theory  of  punishment;  the 
philosophy  of  government  is  treated  in  the  study 
of  the  general  principles  of  government.  Political 
economy  interprets  the  philosophy  of  government  in  con- 
nection with  social  theories  and  with  politics  as  applied 
to  the  problems  of  society  and  government;  ecclesias- 
tical law  has  likewise  philosophical  problems  to  con- 
sider, such  as  the  canonical  proscription  of  interest,  or 
the  relation  of  Church  and  State;  and  similar  legal  prob- 
lems enter  into  every  comprehensive  system  of  ethics. 

Comparative  law  supplements  the  philosophy  of 
law  in  so  far  as  it  proceeds  beyond  the  collation  of 
laws,  and  attempts  to  derive  ethnologically  general 
conceptions  of  law  from  the  material  which  it  collects 
ethnographically.' 

§  2.  Literature  of  the  Philosophy  of  Law}  The  more 
important  works  upon   the  philosophy  of  law  will  be 

^  See  lielow,  §  4. 

^  For  the  less  important  works  on  "natural  law"  belonging  to  the 
early  nineteenth  century,  see  Geyer,  "(ieschichte  und  System  der 
Keehtsphilosophie,"  p[).  GO  see];  and  Warnkönig,  "Philosophi;e  juris 
dclincalio,"  Tiii)iMgen,  IS.Ia.  Ajjpendix:  Bibliolhcca  philosophise 
juris  It  doctrina.'  polilica,'  select;',. 


PHILOSOPHY  OF  ECONOMICS  5 

mentioned  in  connection  with  the  separate  legal 
problems.^ 

§  3.  Conception  of  the  Philosophy  of  Economics.  While 
the  science  of  law  as  an  independent  branch  of  knowledge 
is  of  great  antiquity,  economics  as  an  independent 
science  is  relatively  recent.  Legal  philosophy  was  well 
developed  in  early  days,  particularly  among  the  Greeks 
and  Romans,  but  a  philosophy  of  economics  still  awaits 
formulation.  The  present  renewal  of  interest  in  philo- 
sophical study  and  the  growing  attention  to  economic 
relations,  owing  to  the  increasing  complexity  of  com- 
mercial life  and  the  differentiation  of  class  interests, 
furnish  favorable  conditions  for  a  scientific  study  of  the 
problems  of  economics.  Recent  contributions  show  a 
decided  breadth  of  interest  and  philosophic  insight, 
notably  in  the  favorite  field  of  sociology. 

Law  and  economics  are  here  presented  in  close  affilia- 
tion, as  form  and  content,  as  shell  and  kernel;  yet,  thus 
viewed,  economics  must  not  be  confined  to  the  study  of 
the  production,  exchange,  and  consumption  of  human 
products,  but  should  be  extended  to  a  general  economics 
of  cultural  relations,  comprising  alike  material  and 
intellectual  interests.  The  study  of  human  industry 
leads  to  a  philosophy  of  economics  quite  as  readily  as  a 
study  of  legislation  leads  to  a  philosophy  of  law;  it 
supplies  the  material  setting,  the  content  of  legislation. 
Thus  the  philosophy  of  economics  becomes  the  material 
or  "content"  aspect  of  the  philosophy  of  law.  The 
chief  concern  of  the  latter  is  the  establishment  of  justice 
on  the  formal  side,  while  the  philosophy  of  economics 
relates  to  the  same  interests  in  their  material  aspects. 

^  [The  author's  partial  bibliography  of  general  systematic  and 
historical  works  which  appears  in  the  original  is  omitted;  the  works 
are  mentioned  for  the  most  part  in  later  bibliographical  footnotes. 
— Trans.] 


6  INTRODUCTION 

§  4.  Demarcation  of  the  Philosophy  of  Laiv  from 
Natural  Law,  General  Jurisprudence,  Comparative  Law, 
and  Legal  Sociology.  1:  Philosophy  of  Law  and  "Nat- 
ural Law."  Philosophy  of  law  was  made  equivalent  to 
"natural  law,"  "jus  naturae,"  by  the  Greeks  and  Romans, 
but  more  specifically  by  Grotius  and  his  followers. 
The  supporters  of  this  position  assume  a  natural  law 
independent  of  statutory  law  —  at  times  coincident  with 
it,  more  often  diverging  from  it,  and  representing  an 
ideal  just  law.  As  conceived  by  this  school,  it  is  the  pur- 
pose of  the  philosophy  of  law  to  establish  natural  law 
upon  a  philosophical  basis,  by  deriving  it  deductively 
from  fundamental  principles.^ 

The  historical  school,  anticipated  by  Hugo  and 
founded  by  Savigny  and  Puchta  under  the  influence  of 
Schelling,  was  the  first  to  break  from  the  assumption 
of  a  natural  law  as  something  absolute,  fixed,  and 
unalterable. 2  It  recognized  as  law,  positive  law  alone; 
yet  in  discarding  the  principle  of  natural  law,  it  did  not 
reject  the  advances  based  thereupon.^     No  constructive 

^  Stahl,  "Die  Genesis  der  gegenwärtigen  Rechtsphilosophie,"  1830 
(pp.  68  seq.):  "The  question  as  to  how  I  recognize  what  is  just  and 
what  is  unjust  implies  the  underlying  question  as  to  what  makes 
justice  and  injustice.  What  is  the  nature  of  this  distinction?  What 
is  the  source  of  all  obligation?  The  answer  is  thus  decisive  for 
ethics.  Philosophy,  which  is  limited  to  the  recognition  of  the 
issues  of  reason  can  look  for  the  source  of  this  ethical  element  only 
in  reason.  Such  is  the  character  of  'natural  law.'"   See  also  pp.  70-77. 

2  See  §  34.  At  present  the  doctrine  of  natural  law  has  been 
generally  discarded.  Thus  Dahn,  "Über  Werden  und  Wesen  des 
Rechtes,"  Vol.  II  (Z.  f.  v.  Rechtsw.,  ISSl,  Vol.  III,  p.  8,  §  16): 
"As  law  is  the  peaceful  regulation  of  a  group  of  men  there  can  be  no 
natural  law.  What  is  held  in  common  is  the  idea  of  law.  The 
form  which  it  takes  is  everywhere  conditioned  by  national  and 
historical  circumstances." 

^  Consult  Berghohm,  "Jurisprudenz  und  Rechtsphilosophie,"  Vol.  1, 
Introduction.      Part  I,  "Das  Naturrccht  der  Gegenwart."     Leipzig, 


DEMARCATION  OF  THE  PHILOSOPHY       7 

principles  were  proposed  in  its  place.  The  spirit  of 
the  times  was  inhospitable  to  philosophic  study;  the 
success  of  inductive  methods  in  the  natural  sciences 
had  discredited  pure  deduction.  Accordingly  an  empiri- 
cal position  was  taken,  deriving  law  from  historical 
considerations,  primarily  from  Roman  law,  from  the 
ensuing  Germanic  development,  and  from  the  later 
evolution  upon  these  foundations.  The  older  deductive 
system  based  upon  "natural  law"  had  lost  its  hold; 
but  the  modern  philosophy  of  law  had  not  yet  appeared. 
The  need  of  a  philosophical  study  of  law  became 
apparent  with  the  questioning  of  the  value  of  merely 
empirical  results.  For  however  valuable  in  extending 
the  data  of  their  several  sciences  may  be  the  microscope 
of  the  bacteriologist,  the  retort  of  the  chemist,  the  pre- 
cise instruments  of  the  physicist,  the  paleontological 
restorations  of  the  geologist,  and  the  exact  findings  of 
biologist,  physiologist,  and  psychologist,  they  afford  but 
an  inadequate  insight  into  the  causes  and  relations 
involved;   and  a  comprehensive  view  was  sought  that 

1892.  Bergbohm's  work,  though  seriously  criticized  — especially  by 
Beniatzik  in  Sch.  Jahrb.,  1896,  XX,  pp.  653  seq.  —  is  most  important 
despite  its  one-sided  development.  See  also  Adolf  Merkel,  "Über 
das  Verhältnis  der  Rechtsphilosophie  zur  'positiven'  Rechtswis- 
senschaft und  zum  allgemeinen  Teil  derselben."  (Grünh.  Z.,  1874, 
Vol.  1,  p.  1.)  "Since  legal  philosophy,  despite  its  officially  pronounced 
death-warrant,  has  continued  to  survive  in  a  transparent  disguise 
and  to  exercise  its  influence  quietly  and,  indeed,  has  extended  it, 
it  has  become  an  object  of  embarrassment.  Having  supposed  that 
it  was  happily  disposed  of,  it  is  embarrassing  to  find  that  it  must 
still  be  reckoned  with."  Concerning  the  influence  of  the  doctrine 
of ''natural  law,"  upon  the  study  and  determination  of  fundamental 
economic  conceptions  in  the  manner  of  v.  Hermann' s  "Staatswirth- 
schaftliche  Untersuchungen,"  second  edition,  1870,  see  Berolz- 
heimer:  "Das  Vermögen,  juristische  Festlegung  einiger  Wirtschafts- 
grundbegriff"e"  (Hirth's  Annalen,  1904,  pp.  437  seq.).  On  "natural 
law"  see  a.\so  Bonar:   "Philosophy  and  Political  Economy,"  London, 

1893,  pp.  184-196  (Natural  rights  and  law  of  nature). 


8  INTRODUCTION 

should  reflect  the  results  of  empirical  science  and  yet 
pass  beyond  them.  These  tendencies  influenced  the 
philosophy  of  law.  Historical  research  proved  the  limi- 
tations of  its  own  data.  Induction  established  the  basic 
concepts  (such  as  law,  government,  endeavor,  causality, 
error,  customary  law)  but  could  not  account  for  them. 
There  thus  arose  the  need  for  more  thorough  funda- 
mental principles. 

There  is  a  further  important  aspect  of  the  philosophy 
of  law  —  its  constructive  or  synthetic  side.  It  became 
necessary  to  establish  the  criteria  of  efificient  legislation 
in  general,  and  again  specifically  as  applied  to  such  laws 
as  those  of  contract,  of  punishment,  etc.  Principles 
were  needed  rightly  to  judge  the  numerous  proposed 
reforms  and  innovations  brought  forward  on  all  sides; 
political  policy  appeared  as  a  substitute  for  legal  philoso- 
phy. The  conception  of  justice,  or  at  least  of  what  satis- 
fies the  sense  of  justice,  must  ever  remain  the  point  of 
departure  of  the  philosophy  of  law.  Strictly  interpreted 
legal  philosophy  is  concerned  with  the  problem  of  the 
analysis  of  justice  —  a  problem  recently  considered  by 
the  Neo-Kantians,  especially  by  Stammler.  Such  an 
inquiry  does  not  disregard  general  jurisprudence  or 
legal  sociology,  which  are  clearly  of  direct  service  to 
legal  progress,  and  may  indeed  have  a  larger  sphere  of 
influence  than  belongs  to  a  more  theoretical  pursuit. 
Legal  philosophy  likewise  finds  in  general  jurisprudence 
and  in  legal  sociology  important  data  for  the  successful 
pursuit  of  its  problems,  as  well  as  significant  illustra- 
tions of  its  jirinciples;  yet  the  method  and  interests 
of  ])hilosoi)hy  differentiate  it  from  these  related  disci- 
plines. The  modern  ])hilos<)iihy  of  law  thus  discards 
the  conception   of  an  original  natural  law,^  and  holds 

KSliilil.  "Die  IMiilosoplik-dcsKccIilcs,"  Vol.  1,  1S;?0,  ]).  1.  Ahrcns, 
"Cuurs  de  droit  iiutiircl,"  Vol.  1,  p.  5:    "Tlie  philosujjliy  of  law  is 


DEMARCATION  OF  THE  PHILOSOPHY       9 

fast  to  constituted  law  as  conditioning  the  nature  and 
origin  of  justice,  in  contrast  to  the  older  conception  in 
which  an  ideal  absolute  law  was  set  up  as  supreme,  and 
positive  law  was  made  a  derivative  product.  The 
modern  view  recognizes  positive  law  alone, ^  but  seeks  to 
find  in  it  and  through  it  the  permanent  ideal  concept 
of  justice.  The  two  thus  present  a  common  content 
but  divergent  attitudes.^ 

2:  Philosophy  of  Law  and  General  Jurisprudence. 
A  recent  movement  advocates  an  abstract  legal  science 
in  place  of  a  philosophy  of  law.  It  is  represented  by 
Binding,^  the  founder  of  the  "theory  of  norms,"  and  by 

the  science  of  justice."  "The  philosophy  of  law  sets  forth  the  funda- 
mental principles  of  law  and  determines  the  mannner  in  which  human 
relations  should  beestablishedinconformity  with  the  idea  of  justice." 

^Bierling,  "Juristische  Prinzipicnlehrc,"  Vol.  1,  pp.  1  seq.  The 
older  natural  law  "attempted  to  determine  not  merely  the  general 
formal  character  of  the  law  but  also  a  certain  general  content  grow- 
ing out  of  human  nature,  and  thus  found  its  point  of  departure  not 
merely  in  the  study  of  actually  existing  laws,  but  as  well  in  an 
inherent  assumption  of  an  ideal  legal  content,  presumably  under- 
lying all  positive  law.  Modern  legal  philosophy  attempts  to  point 
out,  in  the  problems  which  the  human  mind  has  had  to  solve,  the 
special  phases  which  belong  to  law,  and  to  investigate  what  from 
this  point  of  view  may  be  regarded  as  generally  ai)i>licable  or  as 
applicable  under  given  conditions."  Again  (p.  5),  "If  it  was  an 
error  of  the  theory  of  natural  law  to  assume  a  certain  though  mini- 
mum content  as  determined  once  for  all,  it  follows  that  the  prin- 
ciples and  conceptions  which  according  to  our  view  form  the  subject 
of  juridical  science  can  only  be  formal." 

^ Bergbohm,  "Jurisprudenz,  etc.,"  Vol.  1,  p.  80:  "Until  some 
other  assumption  is  made  untenable  for  jurists  and  legal  philoso- 
phers, it  must  continue  to  be  emphasized  that  the  characteristic  of 
legal  norms  lies  in  their  mode  of  operation.  Whatever  operates  as 
a  law,  and  only  what  thus  operates,  is  law  without  exception." 

^Binding,  "Die  Normen  und  ihre  Übertretung.  Eine  Unter- 
suchung über  die  rechtmässige  Handlung  und  die  Arten  des  Delikts." 
Vol.  I,  first  edition,  Leipzig,  1872,  second  edition,  Leipzig,  1890; 
Vol.   II,  Leipzig,   1877.     See  also  Binding,   "Handbuch  des  Straf- 


10  INTRODUCTION 

Bierling/  Adolf  Merkel,  and  Jellinek.-  Concerning  the 
view  that  the  philosophy  of  law  is  only  general  legal 
science,  MerkeP  remarks  that  "philosophy  is  an  indis- 
pensable factor  of  the  pursuit  of  science;  to  question 
whether  philosophy  is  of  importance  for  practical  jus- 
tice is  to  question  its  status  as  a  science."  Yet  he  pro- 
ceeds: "To  give  the  term  philosophy  of  law  a  place 
conformable  to  its  accredited  usage  requires  that  it  be 
transferred  to  the  abstract  phases  of  legal  science.  This 
procedure  would   seem   to  be  justified   by  tradition  in 

rechts,"  1,  Leipzig,  1SS5,  pp.  155-222  {Binding,  "Handbuch  der 
deutschen  Rechtswissenschaft,"  VIi,  1,  1);  Binding,  "Grundriss 
des  gemeinen  deutschen  Strafrechts,"  1,  fifth  edition,  Leipzig,  1897, 
pp.  58-72.  A  development  of  the  theory  of  norms  appears  in  Thon, 
"Rechtsnorm  und  subjectives  Recht,"  Weimar,  1878.  M.  E. 
Mayer,  "Rechtsnormen  und  Kulturnormen"  (Beling's  Abh.  Vol.  50, 
1903),  influenced  by  Köhler,  proposes  to  replace  the  "Rechtsnor- 
men" by  the  richer  and  more  vital  "Kulturnormcn."  See  also 
below,  §  46. 

^Bierling,  "Zur  Kritik  der  juristischen  Grundbegriffe,"  2  vols. 
Gotha,  1877,  1883.  "Juristische  Prinzipicnlchre,"  2  vols.,  Freiburg 
and  Leipzig,  1894,  1898. 

Upon  the  relation  of  the  latter  work  to  the  former,  Bierling  thus 
comments  ("Juristische  Prinzipienlehre",  Vol.  1,  Preface,  p.  v): 
"This  work  is  designed  to  present  in  systematic  form  a  course  of 
thought  which  I  pursued  in  a  different  manner  in  my  earlier  and 
incomplete  studies,  'Zur  Kritik  der  juristischen  Grundbegriffe.' 
The  subject  of  the  present  book  is  thus  in  part  identical  with  that 
of  the  former  work."     Concerning  Bierling,  see  also  §  46. 

^Jellinek,  "Die  rechtliche  Natur  der  Staatenverträge,  Vienna. 
1880.  "Die  Lehre  von  den  Staatenverbindungen,"  Vienna,  1882. 
"Gesetz  und  Verordnung,  Staatsrechtliche  Untersuchungen  auf 
rcchtsgeschichtlicher  und  rcchtsvergleichendcr  Grundlage,"  Frei- 
burg, i/B,  1887.  "System  der  subjektiven  öffentlichen  Rechte," 
Freiburg,  i/B,  1892. 

'  Merkel,  "Über  das  Verliältnis  der  Ri'chtsi)hilosophie  zur  'posi- 
tiven' Rechtswissenschaft  unfl  zum  allgemeinen  Teil  derselben." 
(Griinh.  Z.,  Vol.  1,  Vienna,  1871,  i)p.  1    10,  402-421). 


DEMARCATION   OF  THE  PHILOSOPHY      11 

that  such  a  science  assumes  the  functions  and  meets  the 
needs  hitherto  satisfied  by  the  philosophy  of  law."^ 
But  abstract  legal  science  yields  merely  basic  juridical 
conceptions,  and  no  more  affords  a  philosophy  of  law 
than  does  general  physiology  afford  a  philosophy  of 
nature;  in  both  cases  the  constructive  material  is  pro- 
vided but  nothing  more.-  The  two  disciplines  differ 
both  in  content  and  in  intent.  Jurisprudence  comprises 
fundamental  legal  conceptions  apart  from  their  specific 
concrete   formulation;     the   philosophy   of    law   applies 

1  Paul  Müller,  "Die  Elemente  der  Rechtsbild iing  und  des  Rechts 
zur  Grundlegung  für  die  realistische  Begründung  des  Rechts," 
Leipzig,  1877  (pp.  38  seq.).  In  this  he  brusquely  eliminates  philoso- 
phy from  legal  science.  "The  renewed  attempts  of  philosophy  to 
gain  a  direct  and  decisive  influence  upon  legal  science,  or  to  under- 
take the  foundation  thereof,  must  be  considered  as  an  unwarranted 
presumption  in  the  light  of  recent  developments.  A  department  of 
learning  that  itself  lacks  established  principles  can  obviously  not 
offer  useful  principles  to  other  sciences.  A  department  of  learning 
whose  own  development  rests  upon  uncertain  ground  can  clearly 
not  provide  a  serviceable  basis  for  the  teachings  and  the  content 
of  a  legal  science  that  is  striving  for  an  objective  basis.  It  is  better 
to  have  no  foundations  than  to  have  poor  ones."  But  in  a  later 
connection  (p.  43),  Müller  says:  "In  an  indirect  way  [that  is, 
through  the  study  of  philosophical  writings  on  the  part  of 
jurists]  philosophy  may  exert  an  influence  upon  legal  science  and 
law  but  not  by  direct  transference  of  its  principles  and  the  con- 
clusions resulting  therefrom."  It  thus  appears  that  the  legal 
philosopher  is  to  be  philosophically  trained,  but  to  what  extent  he 
is  to  make  use  of  this  training,  Müller  does  not  state. 

'^Bierlijig,  "Juristische  Prinzipienlehre"  (Vol.  1,  p.  1)  aptly 
says:  "The  study  of  legal  principles  considers  the  systematic  pres- 
entations of  those  legal  conceptions  and  fundamental  positions  which 
are  essentially  —  that  is  in  their  permanent  nucleus  —  independent 
from  the  special  peculiarities  of  any  particular  concrete  expression 
of  positive  law."  Bierling  continues:  "Here  belong  in  the  first 
place  the  conception  of  law  itself  and  its  necessary  consequences; 
secondly,  those  conceptions  and  fundamental  positions  which  are 
derived  from  the  essentially  uniform  psychological  nature  of  man  as 


12  INTRODUCTION 

to  the  field  as  a  whole  as  well  as  to  its  divisions.^  The 
jurist  critically  analyzes  the  fundamental  conceptions 
within  the  field  of  jurisprudence  and  stops  where  the 
true  work  of  the  philosopher  begins;  that  is,  with  the 
establishment  of  the  relations  between  the  juridical  con- 
ceptions and  the  general  philosophic  systems  in  which 
they  are  comprised,  and  from  which  they  are  derived. 
Jurisprudence  considers  the  formal  constructive  side  of 
such  conceptions;  the  philosophy  of  law  considers  their 
material  basis  and  essential  nature. 

3:  Philosophy  of  Law  and  Comparative  Law.  Under 
the  leadership  of  Köhler  the  new  and  vigorous  science 
of  comparative  law-  has  contributed  the  descriptive 
ethnographical  data;  and  these  in  turn  have  been  philo- 
sophically interpreted  by  Post  and  Köhler.  Compara- 
tive law^  proposes  to  further  our  insight  into  the  nature 
of  legal  institutions  and  the  spirit  of  their  laws.  It  is 
vain  to  expect  comparative*  law  to  solve  all  the  problems 

bearing  upon  the  theory  and  practice  of  law.  To  this  must  be 
added  that  all  these  conceptions  and  fundamental  positions  with 
which  the  study  of  legal  principles  deals,  or  at  any  rate  such  as 
properly  make  up  its  subject-matter,  are  of  merely  formal  nature." 

^Liti^g's  definition  of  the  nature  and  problems  of  legal  philosophy 
is  to  be  rejected  for  the  reason  that  it  does  not  specifically  distin- 
guish between  legal  philosophy  and  general  legal  science.  Lingg, 
"Wesen  und  Aufgaben  der  Rechtsphilosophie"  (Grünh.  Z.,  Vol.  18, 
1890,  pp.  47,  seq.):  "Philosophy  is  the  science  of  principles;  legal 
philosophy  is  the  study  of  the  princijiles  of  law." 

2  See  below,   §  47.     Also  §  5. 

^Bckkcr,  "Über  den  Rcchlsbegriff"  (Z.  f.  v.  Rechtsw.,  Vol.  1, 
187S,  p.  9.')),  .says:  "That  branch  of  legal  science  which  we  call  the 
philosophical  might  properly  be  expected  to  advance  the  compara- 
tive study  of  law."  In  regard  to  Schuppe's  view  as  against  the 
comparative  school,  in  "Die  Methoden  der  Rechtsphilosophie" 
(Z.  f.  V.  Rechtsw.,  Vol.  V,  ISSt,  pp.  209,  274),  see  below  §  6. 

*BrnihnJt,  "Über  Zweck  und  Mittel  der  vorgleichenden  Rechts- 
wissensch.-jfl "  ('/..  f.  v.  Rechtsw.,  Vol.  1,  p.  J^ß),  says:  "Comparative 
law  sets  forth  how  peoples  of  a  common  origin  have  independently 


DEMARCATION  OF  THE  PHILOSOPHY     13 

of  legal  philosophy.  There  is  a  tendency  to  overrate 
the  value  of  the  former  for  the  latter.^  Until  vitalized 
by  the  force  of  philosophical  principles,  the  most  valuable 
materials  are  merely  building-stones  awaiting  the  design 
of  the  architect.-  ^ 

4:  Philosophy  of  Law  and  Legal  Sociology.  The 
philosophy  of  law  and  legal  sociology  supply  stand- 
ards both  for  the  criticism  of  existing  laws  and  for 
shaping  future  laws.  The  two  are  intimately  related  but 
do  not  coincide.  "To  judge  the  value  of  legislation  is  to 
test  whether  it  furthers  the  purposes  which  the  law  pur- 
developed  the  traditional  legal  conceptions;  how  a  people  modifies 
the  institutions  which  it  inherits  according  to  its  own  views;  and 
thus  how,  without  any  material  connection,  the  legal  systems  of 
different  nations  develop  according  to  common  evolutionary  prin- 
ciples. Briefly  it  attempts  to  discover  the  idea  of  law  in  the  several 
legal  systems." 

1  Köhler,  in  "Enzyklopädie,"  Vol.  I,  sixth  edition,  Leipzig  and 
Berlin,  1902  (p.  14):  "Without  a  general  history  of  law  there  can 
be  no  adequate  philosophy  of  law,  just  as  without  a  general  history 
there  can  be  no  philosophy  of  humanity,  and  without  linguistics  no 
philosophy  of  language."     See  also  pp.  17-20. 

"^Schuppe,  "Die  Methoden  der  Rechtsphilosophie,"  (Z.  f.  v. 
Rechtsw.,  Vol.  V,  1883,  pp.  209-274). 

^  Such  terms  as  "Allgemeines  Staatsrecht"  or  "Allgemeine 
Staatslehre"  are  usually  interpreted  as  the  philosophy  of  govern- 
ment or  a  philosophic  public  law.  Thus  Cumplowicz  calls  tue  sec- 
ond edition  of  his  philosophical  public  law  "Allgomeines  Staatsrecht." 
Accordingly  this  latter  term  refers  to  a  body  of  knowledge  that 
cannot  be  adequately  presented  merely  by  a  comparative  study  of 
law.  I  cannot  endorse  the  view  expressed  by  A.  Aff oiler,  "Staat 
und  Recht,  Versuche  über  allgemeines  Staatsrecht"  (Hirth's  Ann., 
Vol.  36,  1903,  p.  51):  "It  cannot  fail  to  be  recognized  that  the 
essential  content  of  what  was,  and  still  is  taught  as  general  public 
law  ('Allgemeines  Staatsrecht')  is  a  comparative  study  of  law;  freed 
from  the  bias  of  natural  law  it  becomes  comparative  public  law 
('Staatsrecht')-"  If  one  endorsed  Affolfer's  view,  the  conclusion 
would  be  reached  that  "Allgemeines  Staatsrecht"  may  and  should 
omit  the  consideration  of  the  philosophical  questions  concerning  the 


U  INTRODUCTION 

sues,  or,  more  accurately,  whether  it  is  a  serviceable 
means  to  the  achievement  of  a  justifiable  end.  It  is  the 
function  of  the  philosophy  of  law  to  establish  the  funda- 
mental postulates  and  purposes  of  law."  ^  The  assump- 
tion that  the  philosophy  of  law  in  its  critical  and  reform- 
atory aspects  becomes  one  with  legal  sociology  leads  to 
the  position  developed  by  Ihering^  in  his  "Zweck  im 
Recht,"  wherein  he  holds  that  the  end  in  view  determines 
law,  that  all  legislation  serves  social  interests,  and  that 
the  welfare  of  society  is  the  chief  and  final  purpose  of 
law.  The  philosophy  of  law  is  thus  resolved  into  the 
correct  understanding  of  social  welfare,  and  becomes  one 
with  the  politics  of  law.  This  position,  which  gained 
prominence  in  the  last  quarter  of  the  nineteenth  cen- 
tury, is  in  a  measure  a  re-formulation  of  eudemonism. 
It  presents  a  one-sided  and  false  interpretation  of  the 
scope  of  legal  sociology,  which,  as  applied  to  law,  is 
by  no  means  the  same  as  that  of  philosophy  of  law. 
In  the  preface  I  have  indicated  their  common  ground 
and  their  relation  to  existing  institutions,  conceived 
not  as  fixed  but  as  subject  to  constant  develop- 
ment.    Both  disciplines  must  consider  the  interests  of 

origin  and  nature  of  the  State  and  the  position  of  the  individual 
in  the  State;  but  this  position  would  dismiss  the  most  important 
questions. 

Rehm,  "Allgemeine  Staatslehre"  (pp.  1-8),  considers  the  con- 
ception of  his  subject  in  detail.  Agreeing  with  Mohl  and  G.  Meyer 
he  expresses  the  following  view  (p.  7):  "'Allgemeine  Staatslehre'  is 
the  study  of  government  in  general,  of  the  State  as  a  whole  and  not 
of  its  parts."'  This  definition  appears  to  mc  too  broad  and  not 
suffh;iently  precise,  for  the  subject  also  considers  the  divisions  of  the 
State,  such  as  the  distribution  of  authority  within  the  State,  the 
rights  of  freedom,  of  citizens,  etc. 

^  Lirpiwnin,  "l)ic  i\cclilsphiIosophiMlcs  Jeiii  J.i(:(|ues  Rousseau," 
I.p.  11    HI. 

'See  below,  §  i:{. 


DEMARCATION   OF  THE  PHILOSOPHY      15 

the  future  and  direct  opinion.  Their  chief  difference 
lies  in  the  relations  which  they  emphasize  and  in  the 
attitudes  which  they  assume.^  The  philosophical  aspect 
of  law  considers  the  broad  and  far-reaching  policies 
somewhat  after  the  manner  of  the  great  problems  of 
finance;  the  political  aspect  considers  the  immediate  and 
lesser  interests,  the  smaller  currency  of  everyday  ex- 
change. This  difference  of  outlook  inevitably  induces 
an  emphasis  by  the  former  of  ideal  theoretical  considera- 
tions derived  from  the  concept  of  law;  and  by  the  latter, 
of  the  concrete,  more  immediate  practical  purposes.^ 
The  relation  of  the  ]:)hilosophy  of  law  — -  concerned  with 
the  mastery  of  its  own  problems  —  with  legal  sociology 
brings  it  about  that  legal  philosophical  doctrines,  so  far 
as  they  are  directed  to  the  shaping  of  policy  for  the  future, 
have  but  a  relative  validity  and  not  an  absolute  value; 
thus  considered,  the  philosophy  of  law  becomes  the 
formulation  of  the  economic  tendencies  of  a  given  period.^ 

*  Köhler  (Enzyklopädie,  pp.  15,  16)  confirms  this  view  of  the 
relationship  between  the  philosophy  of  law  and  legal  sociology; 
he  very  correctly  denies  the  identity  of  the  two  disciplines,  and  says: 
"The  philosophy  of  law  is  .«-elated  to  'Rechtspolitik'  in  that  it  gives  the 
latter  its  proper  warrant  and  foundation;  in  particular  it  shows  the 
error  of  positivism  in  law."  But  he  gives  no  sharp  differentiation  of 
the  two  disciplines.  See  also  Bluntschli,  "Allgemeine  Staatslehre," 
Preface,  p.  v;  Rehm,  "Allgemeine  Staatslehre"  (pp.  8-10),  whose 
definition  applies  to  politics  and  not  specifically  to  'Rechtspelitik.' 
He  says  (p.  9):  "Politics  as  a  science  is  the  science  of  politics  as 
activity."  R.  Schmidt,  "Allgemeine  Staatslehre,"  Vol.  1,  pp.  2ö- 
33;  Van  Calker,  "Politik  als  Wissenschaft."  Festrede,  January  27, 
1898,  Strassburg,  1898,  pp.  12-21. 

*  Legal  sociology  likewise  extends  into  the  philosophy  of  law 
as  soon  as  it  undertakes  a  thorough  consideration  of  its  principles. 
This  appears  in  the  recent  writers  on  criminal  sociology,  especially 
V.  Liszt.     See  below,  §  44. 

^  One  may  further  formulate  the  difference  and  the  relation 
between  the  philosophy  of  law  and  legal  sociology  by  saying  that 


16  INTRODUCTION 

§  5.  Demarcation  of  the  Philosophy  of  Economics  from 
Political  Economy,  Social  Economy,  and  Social  Ethics. 
The  relation  of  the  philosophical  to  the  political  aspect  of 
economics  is  parallel  to  that  which  obtains  in  law.  It  is 
through  the  larger  outlines  of  general  principles  and  the 
formulation  of  postulates  that  political  economy  attains 
a  philosophy  of  economics.  Political  economy  has  a  near 
range,  and  regards  the  needs  of  the  moment;  the 
philosophy  of  economics  deals  with  larger  periods  and 
more  permanent  interests;  yet  the  boundaries  of  the 
one  overlap  those  of  the  other. 

Social  economy  is  a  subdivision  of  political  economy, 
the  latter  being  understood  as  extending  beyond  mate- 
rial economic  interests  to  the  inclusion  of  the  cultural 
interests  dependent  upon  economic  conditions.  It  is 
"politics  considered  from  a  social  point  of  view";'  its 
material  problems  are  included  in  political  economy,  and 
its  philosophical  problems  in  the  i)hilosophy  of  economics. 

Social  ethics  is  a  subdivision  of  ethics,  which  in  turn 
is  a  philosophical  discipline  intimately  related  in  its 
applications  to  economics  and  law.  From  their  combina- 
tion there  emerges  the  modern  attitude,  which  in  the 
interests  of  personal  liberty  tempers  tiie  strict  require- 
ments of  the  law  by  ethical  considerations. 

§  Ü.  The  Method  of  the  Philosophy  of  Law.  Reflect- 
ing the  influences  of  the  development  in  general  i)hiloso- 
phy,  the  j)hilosophy  of  law  proceeds  by  no  one  method 
but  shows  several  distinctive  tendencies.  From  the 
Middle  Ages  on  there  appear  in  salient  contrast  the 
theological  method  of  scholasticism;  the  Renaissance 
l)hil()so|)hy    of    "natural    law"    framed    upon    classical 

tlif  lattfr  is  the  philosoijhy  of  the  ciirront  siUiatioii,  and  (hat  i)hil- 
<jsoi)liy  is  a  punnaiicnt  ixjiitics. 

^  Jitstrmu,    "S(»/i.il|)i)hlik   uikI    Wtw.iUuiig.swissciischafl,"    Berlin, 
1S9'J,  !)[>.  ;i-'J7. 


METHOD  OF  PHILOSOPHY  17 

models;  the  more  speculative  philosophy  of  "natural 
law,"  from  Kant's  critical  idealism  to  the  dialectics  of 
Hegel;  and  the  historical  school,  philosophically  spon- 
sored by  Hegel's  theory  of  development,  established  by 
Schelling,  and  juridically  developed  by  Hugo,  Savigny, 
and  Puchta.  The  speculative  tendency  survives;  and 
though  the  doctrine  of  natural  law  has  been  abandoned, 
the  views  of  Kant  and  Hegel  are  still  influential  in  gen- 
eral law.^     The  historical  school  prevails  in  private  law.' 

^Berghohm,  "Jurisprudenz  und  Rechtsphilosophie,"  Vol.  1; 
Fachmann,  "Über  die  gegenwärtige  Bewegung  in  der  Rechtswis- 
senschaft," an  Address,  Berlin,  1SS2.  Köhler,  "Rechtsgeschichte 
und  Weltentwickclung,"  Z.  f.  v.  Rechtsw.,  Vol.  V,  1884,  pp.  321-334; 
Schuppe,  "Die  Methoden  der  Rechtsphilosophie,"  Z.  f.  v.  Rechtsw., 
Vol.  V,  1884,  pp.  209-274;  Lmgg,  "Wesen  und  Aufgaben  der  Rechts- 
philosophie," Grünh.  Z.,  Vol.  18,  pp.  42-63;  Jellinek,  "Das  Recht 
des  modernen  Staates,"  Vol.  I,  Berlin,  1900,  pp.  23-48;  Wu7idt, 
"Logik,"  second  edition.  Vol.  II,  pp.  477-499,  533-588. 

2 The  same  holds  of  penology.  See  particularly  Richard  Loening, 
"Über  geschichtliche  und  ungeschichteliche  Behandlung  des  deut- 
schen Strafrechts,"  an  address  delivered  April  29,  1882,  published 
in  Z.  f.  d.  g.  Str.,  Vol.  III,  1888,  pp.  219-375.  He  strenuously 
contends  against  all  forms  of  speculation  and  in  favor  of  a  purely 
historical  treatment.  "It  is  the  problem  of  German  penology,  if  it 
aims  at  a  real  understanding  of  the  present  criminal  law  and  the 
several  factors  thereof,  to  place  the  study  of  its  history  in  the  fore- 
ground, and  particularly  to  study  the  history  of  the  essential  part 
thereof  upon  which  everything  else  depends,  namely  the  subjective 
claims  of  punishment,  the  subjective  justification  attaching  to  vio- 
lations of  the  law"  (p.  228).  "The  objection  is  made  to  the  his- 
torical method  that  it  does  not  afford  in  ready  and  final  form  the 
ultimate  and  persistent  bases  of  law  that  prevail  independently 
of  their  historical  expression,  and  overlooks  that  the  implied  demand 
is  one  nowhere  available  for  human  satisfaction.  The  historical 
method  does  not  raise  any  such  claim  to  supply  absolute  philosophi- 
cal values.  But  what  the  historical  method  thus  admittedly  fails 
to  provide  is  beyond  the  scope  of  any  method,  unless  those  who  em- 
ploy it  had  previously  divested  themselves  of  their  human  nature" 
(p.  239).  "Present-day  penology  shows  not  alone  a  lack  of  thehistor- 


18  INTRODUCTION 

A  newer  movement  is  presented  by  the  sociological  ^ 
and  comparative-  school,  which  has  largely  invaded  the 
field  of  criminal  law  and  has  influenced  both  the  theory 
of  punishment  and  of  criminal  reform.     The  compara- 

ical  method  but  of  what  is  more  serious,  a  lack  of  all  definite  and  cer- 
tain method;  it  is  open  to  every  manner  of  surmise.  .  .  .  The  only 
means  gradually  to  overcome  the  prevalent  detachment  from  posi- 
tive law,  and  gradually  to  restore  the  sympathy  between  it  and 
science,  seems  to  me  to  consist  in  a  radical  break  with  the  scientific 
traditions  of  the  preceding  century.  This  must  be  done  in  two  re- 
spects: first  negatively,  by  an  abandonment  of  all  speculations  and 
considerations  'de  lege  ferenda'  that  rest  upon  any  other  founda- 
tions than  that  of  the  positive  law;  and  again  positively  by  a 
thorough  and  unprejudiced  study  of  the  historical  development  of 
German  criminology.  ...  I  may  sum.  up  the  conclusion  in  these 
words:  No  penology  except  that  founded  upon  existing  positive  law, 
and  no  science  of  positive  law  without  historical  foundation"  (pp. 
260-262).  See  also  R.  Loening,  "Geschichte  der  strafrechtlichen 
Zurechnungslehre,"  Vol.  1,  Jena,  1903,  pp.  ix,  seq. 

^  See  below,  §44,  concerning  criminal  sociologists  —  the  "posi- 
tive" school  of  penology:   v.  Liszt,  Fern'  and  others. 

2  See  below,  §47.  In  "Die  Methoden  der  Rechtsphilosophie" 
(Z.  f.  v.  Rechtws.,  Vol.  V,  1884,  pp.  209-274),  Schuppe  treats  the 
problem  of  the  scope  of  comparative  law  in  detail.  His  comments 
upon  the  comparative  school  are  pertinent,  although  a  fundamental 
error  underlies  his  attitude.  He  says  (p.  227):  "After  this 
psychological  digression  I  return  to  the  position  which  has  been 
demonstrated.  If  it  be  the  problem  of  the  philosojjhy  of  law  to 
determine  the  nature  of  law,  to  determine  the  factor  by  virtue  of 
which  an  action  or  a  circumstance  is  declared  to  be  right  or  wrong, 
then  the  comparative  method  —  if  we  mean  thereby  that  we  can 
only  determine  actions  as  right  or  wrong  through  comparison  — 
most  illogically  assumes  what  is  to  be  proven.  There  must  always 
be  some  indication  of  the  point  to  be  established  in  order  to  ascer- 
tain what  is  pertinent  ti)  a  coniparisoii."  The  philosophy  of  law 
seeks  the  meaning  of  tlie  nature  of  law;  the  comparative  position 
believes  it  |)ossible  to  determine  it  by  comparing  the  various  systems 
of  positive  law  or  a  representative  grouji  thcnuf.  The  comparative 
study  of  law  may  be  said  to  altemi)t  to  <li d  rniine  the  nature  of 


METHOD  OF  PHILOSOPHY  19 

tive  method  has  also  been  profitably  applied  in  the  field 
of  jurisprudence;^  the  influence  of  psychology  and  of 
other  tendencies  is  apparent. 

In  such  diversity  oi  view  we  recognize  a  trait  of  a 
period  of  transition,,  which  is  likewise  evidenced  by  the 
discontent  with  tradition,  and  by  the  many  proposals 
for  reform.  Such  profusion  of  doctrines  is  more  dis- 
turbing than  illuminating;  and  this  is  true  in  art  and 
literature  as  well  as  in  philosophy.  Equally  distinctive 
is  the  constructive  weakness,  the  absence  of  originality 
in  construction  or  presen^.ation,  wherein  the  older  ideals 
may  be  incorporated  and  advanced.  Yet  above  this 
diversity  of  effort  and  opinion  there  emerges  a  distinc- 
tive and  newer  idealism  • —  an  idealism  loyal  to  the  reali- 
ties, and,  in  so  far,  a  realistic  idealism.  The  old  idealism, 
that  had  spent  its  force  towards  the  middle  of  the  nine- 
teenth century,  failed  by  its  lack  of  a  sense  of  reality  — 

law  as  would  a  student  of  natural  science  who  undertook  to  deter- 
mine the  nature  of  mammalia  or  of  trees  by  comparing  a  sufficient 
number  of  species  of  mammals  or  trees,  and  finding  their  common 
characteristics.  Comparative  law  looks  upon  positive  law  as  its 
sole  and  complete  means  of  study.  The  purpose  of  comparison  is 
the  discovery  of  essential  or  general  common  traits.  Whether  the 
purpose  can  be  achieved  by  mere  comparison  is  debatable;  and  I 
agree  with  Schuppe  in  maintaining  the  negative  of  the  proposition; 
but  the  argument  advanced  by  him  seems  to  me  untenable;  yet 
his  concluding  observations  may  be  endorsed.  "It  is  hoped  that 
the  preceding  considerations  have  made  it  clear  that  the  philosophy 
of  law,  apart  from  experience  and  comparison,  is  a  fiction;  but  that 
the  insight  cannot  be  attained  directly  as  a  result  of  comparison; 
that  accordingly  the  mere  volume  and  completeness  of  material  is 
not  indispensable,  but  that  the  main  point  is  the  thorough  observa- 
tion and  analysis  of  the  salient  phenomena;  and  that  such  thorough 
observation  and  analysis  do  not  discover  the  important  distinctions 
by  any  method  that  may  be  taught,  but  is  essentially  a  matter  of 
individual  endowment"   (p.  267). 

^  See  below,  §  49. 


20  INTRODUCTION 

a  criticism  as  applicable  to  classicism  in  art  and  literature 
as  to  speculative  philosophy.  In  accordance  with  the 
historical  principle  by  which  an  extreme  movement  in 
one  direction  induces  a  reaction  in  the  opposite  direc- 
tion, idealism  was  superseded  by  an  equally  uncompro- 
mising realism,  a  stern  materialism  of  thought  and  deed. 
The  sense  of  reality,  once  aroused,  overreached  itself  to 
the  exclusion  of  the  theoretical  and  the  constructive. 
Reality  was  limited  to  what  the  senses  could  perceive 
and  the  reason  infer.  Ideals  were  discarded  as  illusions. 
Theology  was  banished  from  the  cosmic  conception. 
Art  and  literature  were  invaded  by  naturalism,  as  was 
philosophy  by  empiricism.  Similar  influences  replaced 
philosophy  in  the  field  of  law  by  historical  and  ethno- 
logical research,  and  again  by  the  economic  materialism 
of  Marx  and  his  followers.  With  the  inevitable  reaction, 
idealism  once  more  returned  as  a  permanent  factor  in 
the  view  of  nature  and  life.  Nonetheless,  the  interven- 
ing period  of  materialism  had  itself  served  the 
purposes  of  culture,  in  that  the  reconstructed 
idealism,  unlike  its  precursors,  was  not  given  to  ex- 
travagant speculation,  but  took  close  account  of 
realities.  Neo-idealism  developed  an  idealistic  con- 
ception of  human  activity  upon  vital  issues,  avoid- 
ing both  the  onc-sidcdness  of  idealism  and  the  self- 
suflicicncy  of  realism.  In  the  domain  of  law  it 
rejected  the  principle  of  natural  law  as  well  as  all  ex- 
treme speculative  tendencies,  and  interpreted  the  his- 
torical, ethnological,  and  economic  data  from  a  broader, 
more  idealistic  point  of  view. 

§  7.  Law  and  Economics.  During  the  dominance 
of  the  doctrine  of  natural  law  the  sense  for  exact 
historical  researcli  remained  dormant;  yet  deductive 
conclusions  were  not  naively  niislakcu  for  historical 
truths,   not  even  by  so   thorough-going  a  defender  of 


LAW  AND  ECONOMICS  21 

"natural  law"  as  Rousseau.^  The  advocates  of  "natural 
law"  found  the  doctrine  well-adapted  to  their  political 
views  and  position ;  for  apart  from  the  fact  that  no  other 
serviceable  formula  was  available,  it  permitted  the 
assumption  of  any  number  of  prerogatives  and  privileges 
as  natural  rights  lying  within  the  scope  of  the  primitive 
social  compact,  thus  supporting  the  political  positions 
which  it  was  important  to  justify.  When  later,  under 
the  influence  of  Hegel  and  SchelHng,  the  historical  sense 
was  aroused,  the  doctrine  of  natural  rights,  having  served 
its  economic  and  philosophic  functions,  declined.  The 
study  of  history  furnished  the  foundations  for  the 
political  ideal  of  nationalism ;  next  came  the  intermediate 
influence  of  economic  materialism ;  and  then  was  ushered 
in  the  present  dominant  sociological  period  in  social  and 
economic  philosophy.  Inasmuch  as  society  is  a  world- 
wide and  world-old  institution,  preceding  government 
though  developed  by  it,  it  remained  for  the  comparative 
method  to  supply  an  all-embracing  conception  of  its 
nature.  Thus  each  period  brought  forward  the  legal 
and  economic  conceptions  needed  for  the  validation  of 
its  political  views  and  positions.  Each  method  in  turn 
—  the  natural,  the  historical,  and  the  comparative  — 
incorporated  the  scientific  advantages  of  its  predecessors. 
The  philosophical,  the  historical,  and  the  comparative 
method  must  now  be  developed  and  applied  to  the 
modern  State  composed  of  free  industrial  classes.  For 
such  purposes  a  method  reflecting  the  closely  allied  inter- 
ests of  law  and  economics  is  alone  adequate.- 

^  "Contrat  social,"  Vol.  1,  1:  "Man  is  born  free  and  everywhere 
he  is  in  fetters.  .  .  .  How  has  this  transformation  come  about? 
I  do  not  know.  What  can  justify  it?  This  question  I  think  I  am 
able  to  solve." 

^Stammler,  "Wirthschaft  und  Recht  nach  der  materialistischen 
Geschichtsauffassung.  Eine  sozialphilosophische  Untersuchung." 
Leipzig,  1896;  Berolzheimer,  "Das  Vermögen,  juristische  Festlegung 


22  INTRODUCTION 

Economics  and  law  considered  as  static  phenomena  are 
related  as  content  and  form;  but  both  are  subject  to 
change  —  the  one  continuously,  the  other  from  time  to 
time.  In  considering  their  development  and  interaction, 
it  is  well  to  recall  that  the  materialistic  conception  of 
history  has  pro\'ed  itself  untenable.  Economic  move- 
^ments  do  not  of  themselves  change  laws.  The  laboring 
classes  in  England  would  have  continued  to  be  oppressed, 
had  not  Karl  Marx  impressively  portrayed  their  wretched 
condition.  Ricardo  had  set  forth  that  the  "iron  law 
of  wages"  must  ever  place  a  heavy  burden  upon  these 
classes;  and  in  India  and  China  the  coolies  still  remain 
contentedly  adjusted  to  their  condition.  A  spark  i^ 
needed  to  light  the  powder.  The  material  condition  of  the 
oppressed  classes  served  to  re-enforce  the  fervid  appeal 
of  high-minded  reformers.  Without  the  appeal  to  liberty 
and  the  enlightening  influence  of  the  Encyclopedists, 
the  economic  abuse  on  the  part  of  the  ruling  classes, 
despite  the  oppressed  condition  of  the  masses,  would 
not  have  brought  on  the  French  Revolution.  Economic 
changes,  particularly  in  a  society  in  a  wholesome,  respon- 
sive condition,  lead  to  legislative  reconstruction.  It  is 
also  true  that  law  acts  as  an  inhibitory  force  to  check  too 
rapidly  assertive  economic  movements;  yet  changes  in 
the  law  also  react  upon  economic  conditions  and  render 
them  unstable.  If  we  may  conceive  the  evolutionary  wave 
as  formed  of  single  stable  points,  then  it  would  he  true 
of  each  such  point,  statically  considered,  that  economics 
and  law  at  any  given  moment  arc  one  and  the  same. 

einiger  \VirlscIiaflsj;riin(llH'!;rirfi',"  I  lirtlis  Ann.,  1901,  pp.  437-453, 
516-.5r)2,  r)<)2-üü();  W.  Ed.  Biermann, '"^Uvat  unci  Wirtschaft,"  Vol.  1, 
Berlin,  lOOf);  Larnprrrht,  "1  )cutschi-s  Wirtschaftsleben  im  Mittel- 
alter," \'()i.  1,1,  L(ii)zii;,  ISSC)  (l\i(  111  und  Wirtschaft  zur  fränkischen 
Stammcszcil,  pp.  3  (iOj;  especially  "Die  gegenseitij?en  Beziehungen 
vun  Recht  und  Wirtschaft,"  up-  19-51.     Sec  also  §  52. 


LAW  AND  ECONOMICS  23 

The  conception  of  economics  must  not  be  a  narrow 
one;  it  must  not  be  applied  solely  to  products  together 
with  their  manufacture,  distribution,  and  consumption; 
nor  yet  wholly  be  limited  to  the  idealistic,  spiritual,  and 
cultural  factors  in  society.  Economics  comprises  both.  / 
institutions  and  intellectual  movements.  It  is  some-'' 
what  surprising  that  so  conspicuous  a  truth  as  the  inter- 
action of  economics  and  law  should  have  waited  so  long 
for  recognition  ■ —  a  recognition  by  no  means  universal. 
Some  of  those  who  question  it  maintain  the  independence 
and  self-sufficiency  of  law,  while  others  maintain  that  of 
economics.  The  most  distinguished  representative  of 
the  former  group  is  Binding,  who  holds  that  all  law  is  by 
nature  "imperative,  a  norm,  a  command."  The  norms 
are  the  result  of  regulation  —  of  the  supremacy  of  the 
State.  The  opposite  view  is  represented  by  the  mate- 
rialists, who  hold  that  economic  conditions  exclusively 
determine  the  development  of  history  in  general,  and 
with  it,  that  of  law. 

In  reality  law  and  economics  are  ever  and  everywhere 
complementary  and  mutually  determinative,  like  form 
and  content.  The  philosophy  of  law  is  furthered  by  a 
knowledge  of  its  economic  aspects;  for  without  the 
vitalizing  embodiment  furnished  by  a  living  society,  legal 
conceptions  would  be  bare  and  dead.  The  alliance  of  . 
economics  with  law  gives  economic  values  a  firm  hold^- 
through  legal  enforcement;  it  is  indispensable  to  the 
proper  establishment  of  philosophical  principles,  which 
alone  are  capable  of  dispelling  the  inconsequent  vague- 
ness to  which  social,  reformatory,  and  ethical  teachings, 
when  unsupported  by  a  solid  theoretical  basis,  are  apt 

On  the  method  of  economics  see  Wundt,  "Logik,"  Vol.  11,  pp. 
499-533;   and  on  the  method  of  the  social  sciences,  pp.  436-630. 

^Berolzlieimer,    "Das  Vermögen"    (Hirth's  Ann.,   1904,  pp.  437- 
448,  531-540,  601-606).     See  also  §  45. 


24  INTRODUCTION 

to  degenerate.  With  the  aid  of  this  composite  approach 
we  reach  the  threshold  of  a  comprehensive  development 
of  legal  economics.  The  great  struggle  for  emancipa- 
tion begun  in  ancient  times  found  its  expression  in  the 
infusion  of  law  with  the  ethical  spirit,  and  closed  with 
the  emancipation  of  the  fourth  estate.  The  same 
ethico-legal  spirit  may  serve  as  the  foundation  for  a  new 
alliance  of  law  and  economics,  which  shall  similarly 
further  the  influence  of  each  and  their  common  purpose. 
Their  joint  pursuit  will  advance  the  recognition  of  the 
essential  community  of  economics  and  law  by  providing 
the  law  with  a  basis  adequate  to  meet  progressive  eco- 
nomic conditions.^ 

'  See  below,  §  52. 


ANCIENT    EGYPT  25 


CHAPTER  I 
THE    ORIGINS    OF    ORIENTAL    CIVILIZATION 

ANCIENT  EGYPT.  —  BABYLONIA  AND  ASSYRIA:  (1)  BABYLONIAN 
AND  ASSYRIAN  CIVILIZATION,  (2)  THE  CODE  OF  HAMMURABI.— 
THE  VEDIC  ARYANS.— THE  JEWISH  STATE.— THE  PHCENICIANS. 

§  8.  Ancient  Egypt.  The  civilization  of  ancient 
Egypt  influenced  all  later  civilizations.^  Greeks  and 
Romans  drew  from  it,  and  the  Mosaic  code  w^as  devel- 
oped upon  its  soil.  Certain  Egyptian  customs  and  views 
of  an  ethical  or  legal  import  are  quite  modern  in  sugges- 
tion, bringing  to  mind  the  austere  spirit  of  Western 
Europe  in  the  eighteenth  century,  or  even  the  utilita- 
rian attitude  of  our  own  day,  rather  than  an  established 
civilization  upon  the  ancient  and  distant  shores  of  the 
Nile.  A  defiant  sphinx-like  quality  attaches  to  many 
phases  of  that  ancient  culture. 

1  The  works  of  the  French  Egyptologist,  E?<gene  Revillout,  are  espe- 
cially important.  "Cours  de  droit  egyptien,"  Vol.  I,  Part  1;  "L'etat 
des  personnes,"  Paris  1884;  "Les  Obligations  en  droit  egyptien 
compare  aux  autres  droits  de  I'antiquite  (suivies  d'un  appendice  sur 
le  droit  de  la  Chaldeeau  XXIIF  et  au  VP  siecleavant  J.  C.),"  Paris 
1886.  The  appendix  is  by  Victor  and  Eugene  Revillout.  "La  pro- 
priete  ses  dcmembrements  la  possession  et  leurs  transmissions  en 
droit  egyptien  compare  aux  autres  droits  de  I'antiquite,"  Paris 
1897;  "La  creance  et  le  droit  commercial  dans  I'antiquite,"  Paris 
1897. 

Revillout  has  made  important  original  contributions,  and  hai^ 
translated  the  legal  records  of  ancient  Egypt.  These  relate  for  the 
most  part  to  the  later  Egyptian  period,  being  written  in  the  demotic 
script. 


26  ORIENTAL  CIVILIZATION  [Ch.  1 

The  meagerness  of  the  sources  of  Egyptian  philosophy 
makes  it  difficult  to  interpret  the  nature  of  institutions, 
whose  outward  form  is  described,  but  whose  deeper 
import  remains  uncertain.  Our  knowledge  thereof  is 
derived  from  accounts  of  the  daily  life,  from  records  of 
legal  transactions,  and  from  inscriptions  upon  tombs. 
The  histories  of  ancient  Egypt  describing  its  customs 
and  usages  were  prepared  by  foreigners,  such  as  Herodo- 
tus and  Diodorus  Siculus,  who  naturally  dwelt  uyion 
conditions  contrasting  with  those  of  Greece  or  Rome; 
and  who,  moreover,  accepted  uncritically  legends  and 
traditions,  which  were,  in  turn,  uncritically  repeated  by 
later  writers. 

Religion  so  dominated  the  culture  of  Egypt  that  its 
bearing  upon  the  philosophy  of  law,  though  indirect,  is 
illuminating.^  In  this  religion  may  be  distinguished  the 
veneration  of  personified  forces  of  nature,  and  the 
symbolic  worship  of  animal  life.  Greek  writers,  not 
unlike  modern  Egyptologists,  explain  this  worship  by 
the  belief  in  the  transmigration  of  liuman  souls  into  the 
bodies  of  animals.  Yet  it  is  difficult  to  maintain  that 
the  fear  of  injuring  the  soul  of  a  departed  fellow-man 
woukl  account  fc^r  the  jjunishmcnt  by  death  of  even  the 
accidental  killing  of  a  sacred  animal,  and  for  the  extreme 
resentment  incident  to  such  an  offense.  It  may  be  urged 
that  the  si)irit  of  Egy])tian  religion  is  more  correctly 
inten)reted  by  cni])hasi/ing  the  ])rin('ii)le  of  energy,  of 
life  and  generation  and  fertility,  as  divine.  In  this 
view  animal  life  reiiresents  the  divine  forces  conferring 
benefit  U])on  man.  The  i)()h'theistic  worshij)  is  adcfressed 
to  the  su])reme  sun-god  Re, and  to  all  other  su])c'rhuman 
sources  of  energy  and  life;  and  the  monuments  cU'dicated 

^  Will; ill sdv,  '"I'lic  in.iiuK'is  and  customs  of  ihr  aiuiciU:  I'^gyp- 
tians,"  Vol.  II,  pj).  454-4<n,  5()',)-515;  \'ol.  Ill,  parluularly  p. 
353,  also  pp.  ;',54-12(;,  427  si(i. 


§8]  ANCIENT    EGYPT  27 

to  the  gods,  like  the  stupendous  pyramids,  by  suggest- 
ing heroic  efforts,  become  the  mighty  symbol  of  the 
divine  order.  Yet  it  must  be  admitted  that  the  promi- 
nence of  animal  worship  is  difficult  to  explain.  Histori- 
cal considerations  are  helpful;  and  the  Egyptian  civili- 
zation, standing  between  primitive  culture  everywhere 
characterized  by  fetishism  and  an  intimate  regard  for 
animal  life,  and  the  later,  more  anthropomorphic  atti- 
tude of  Greek  thought,  presents  a  transition  embodying 
alike  the  older  and  the  newer  conceptions.  It  may  fur- 
ther be  suggested  that  the  belief  in  transmigration  was 
not  the  cause  of  animal  worship  but  the  means  utilized 
by  Egyptian  ethics  to  enforce  its  ideals  of  self-restraint. 
There  is  no  systematic  work  bearing  upon  the  ethics 
or  law  and  political  economy  of  the  Egyptians.  Their 
views  must  be  inferred  from  their  legislation,  which  con- 
tains a  most  comprehensive  prescription  for  every  detail 
of  life  —  a  minute  policing  and  regulation  that  may  well 
be  called  petty.  Although  the  king  was  rated  as  the 
son  of  the  most  supreme,  of  the  sun-god  R^,  his  functions 
were  by  no  means  those  of  a  tyrant  or  despot,  but  his 
daily  life  was  regulated  to  the  minutest  detail ;  ^  and  such 
limitations  illustrate  the  purpose  of  the  establishment  of 
a  just  sovereignty,  which  is  to  realize  the  conception  of 
law  through  the  perfect  conduct  of  the  subjects,  to  whom 
the  king  is  an  exemplar  of  virtue.  The  throne  was 
hereditary ;  and  the  people  were  confined  to  rigid  heredi- 

^  Compare  Diodorus,  Book  1,  pp.  69-72.  The  care  of  the  king's 
person  was  in  charge  of  the  highest  nobles,  in  order  that  he  might 
not  be  evilly  influenced  by  his  environment.  His  activities  by  day 
and  night  were  precisely  regulated.  Even  his  food  was  regulated 
by  law  to  avoid  intemperance  and  drunkenness.  In  connection 
with  every  sacrificial  act  the  practice  of  self-control,  piety,  mercy, 
and  justice  was  enjoined.  Upon  the  position  of  the  king  see  Uhle- 
mann,  "Handbuch  der  ges.  ägyptischen  Altertumskunde,"  Vol.  H, 
pp.  48-55. 


28  ORIENTAL    CIVILIZATION  [Ch.I 

tary  occupations.^  Questionable  as  may  be  the  advan- 
tages or  disadvantages  of  such  extreme  regulation,  it 
was  demanded  by  a  legislation  that  accepted  as  its  goal 
the  maximum  subjection  of  the  will  of  the  individual 
to  legal  prescription.  In  addition  to  the  class  of  free 
citizens  there  were  slaves.  Slavery  was  looked  upon  as 
"the  inevitable  and  direct  issue  of  war."  ^  Yet  in  pro- 
gressive  times,   notably   under   the  sovereignty  of   the 

1  The  Egyptians  did  not  acknowledge  rigidly  exclusive  castes  such 
as  obtained  in  India;  but  the  vocational  classes,  particularly  the 
warriors  and  priests,  were  organized  upon  a  caste  basis.  This, 
however,  has  been  contested.  See  Revillout,  "Cours  de  droit 
egyptien,"  Vol.  I,  pp.  131-150.  "I  regard  it  as  useless  to  give  here 
the  concordant  evidence  of  the  ancients  —  Solon,  Herodotus, 
Plato,  Aristotle,  Socrates,  Diodorus,  Dicaearchus,  Strabo.  All  these 
authors,  whether  contemporary  or  later,  distinctly  record  the  exist- 
ence of  Egyptian  castes  and  the  inheritance  of  the  same  functions 
in  the  same  families.  They  differ  only  in  a  more  or  less  complete 
enumeration  of  these  castes.  Were  they  all  mistaken?  The  opinion 
prevails  among  many  Egyptologists  that  they  were."  (p.  131.) 
See  particularly  Revillout,  "La  propriete,"  etc.,  Paris  1897,  Part  1, 
p.  50:  "The  Egyptian  caste  was  a  right  of  succession  of  sons  from 
their  father,  and  it  was  not,  as  in  India,  an  absolute  barrier  placed 
upon  the  sons  to  prevent  their  leaving  the  status  of  their  father." 

The  Egyptian  priestly  caste  was,  however,  legally  divided  into 
several  classes  which  were  distinct,  and  membership  in  which  was 
hereditary,  so  that  a  transfer  from  one  class  to  another  was  not 
possible.  See  Tivesten,  "Die  religiösen,  politischen  und  sozialen 
Ideen  der  asiatischen  Kultur\'ülke!  und  c'er  Ägypter,"  \'<)1.  I,  p. 
355. 

The  Egyptian  caste  system,  in  contrast  to  that  of  India,  depended 
"essentially  upon  the  practical  position  that  vocation  was  heredi- 
tary. The  idea  expressed  in  this  inheritance  of  an  occupation  was 
that  the  calling,  like  every  other  possession,  belonged  not  to  the 
irulividual  but  to  the  family;  that  like  a  social  office  it  was  at  once 
a  |)rivil('ge  and  a  (liil\-."  Tivrstcu,  p.  .371.  Sec  also  Vhlcniann, 
"lianilbuch,"  clc 

*"A  direct  and  enfon cd  nsull  of  war."  Revillout,  "Cours,"  etc., 
1,  p.  (i2. 


§81  ANCIENT    EGYPT  29 

Pharaohs,  slaves  were  humanely  treated.  They  were 
permitted  to  marry;  and  if  married,  the  union  was  not 
interfered  with.  They  attained  to  positions  of  trust; 
as  commercial  agents,  or  as  agricultural  tenants,  they 
enjoyed  comparative  independence.  Herodotus  men- 
tions places  of  refuge  for  slaves,  and  modes  of  procedure 
for  terminating  the  slave  relation.^ 

The  agriculture  of  a  country  depends  primarily  upon 
climatic  conditions.  The  natural  fertility  of  the  soil  of 
Egypt  was  further  increased  by  a  system  of  canals,  and 
invited  to  the  pursuit  of  agriculture,  which  was  so 
highly  esteemed  that  the  care  of  the  fields  was  made  a 
public  function."  The  remarkable  fertility  of  the  soil 
made  possible  a  rate  of  interest,^  which,  judged  by  our 
standards,  would  amount  to  usury,  but  which  was  justi- 
fied by  the  conditions.  The  altruism  of  Egyptian  civili- 
zation appears  in  the  consideration  of  the  economically 
and  socially  dependent.     Humane  provisions  were  made 

^"It  is  by  virtue  of  a  religious  rite  that  a  slave  maltreated  by  his 
master  could  terminate  his  sufferings."  Revillout,  "La  creance," 
etc.,  p.  84;  also  p.  85.  Herodotus,  II,  113;  Revillout,  "Cours," 
etc.,  1,  pp.  61-114;  "La  creance,"  etc.,  pp.  84-86,  137-154,  155- 
178;    Pierret,  "Dictionnaire  d'archeologie  egyptienne,"  p.  211. 

^Revillout,  "La  propriete,"  etc.,  pp.  49-72;  Pierret,  "Dictionnaire," 
etc.,  pp.  11-13.  See  also  Wilkinson,  "Manners,"  etc.,  Vol.  IV,  1; 
Revillout,  "La  creance,"  etc.,  p.  125. 

Only  oüficials  and  the  class  of  warriors  were  exempt  from  agri- 
cultural service,  and  even  this  privilege  was  at  times  not  available. 
See  Revillout,  "Cours,"  etc..  Vol.  I,  p.  130. 

^The  freedom  of  the  people  from  pressing  needs,  due  to  the  mild 
climatic  conditions,  was  an  additional  factor.  See  Wilkinson, 
"Manners,"  etc..  Vol.  I,  p.  312:  "The  necessary  expenses  of  the 
Egyptians  were  remarkably  small,  less  indeed  than  of  any  people, 
and  the  food  of  the  poorer  classes  was  of  the  cheapest  and  most 
simple  kind."  This  condition  persists  almost  unaltered  to  the 
present  day.  See  "Description  of  Egypt,"  Vol.  II,  Part  II,  p.  408: 
"Frugality  is  the  virtue  of  the  inhabitants  of  Egypt." 


30  ORIENTAL    CIVILIZATION  [Ch.  1 

in  behalf  of  the  debtor ;  ^  the  position  of  woman^  was 
in  general  on  a  par  with  that  of  man:  as  maiden,  wife, 
or  widow,  she  enjoyed  full  legal  rights  and  freedom  of 
action.  The  Code  of  Bocchoris '  provided  in  the  mar- 
riage contract  for  a  general  lien  in  the  wife's  behalf 
upon  the  available  and  future  property  of  the  husband. 
It  stipulated  that  if  the  husband  take  an  additional 
wife,  he  must  convey  the  property  to  the  oldest  son  by 
the  first  wife,  investing  him  with  a  one-third  interest 
as  manager  and  partner.  Polygamy  seems  thus  never 
to  have  been  legally  abolished  among  the  Egyptians. 
Under  the  Ptolemies  the  claims  of  the  wife  upon  the 
property  of  the  husband  were  restricted  because  of 
the  prevalence  of  fictitious  debts  of  the  husband  to  the 
wife,  which,  through  the  rapid  accumulation  of  interest, 
frequently  led  to  bankruptcy.  A  tutelage  ("quasi- 
tutelle"  ^)  for  the  wife  was  established  under  Grseco- 
Macedonian  influence. 

As  already  indicated,  the  ethics  of  the  Egyptians  was 
directed  to  the  protection  of  the  economically  weaker 
classes.^ 

^  The  Icj^al  maxinuim  rate  of  interest  was  thirty  per  cent.  This 
high  rate  is  explained  by  the  fertility  of  the  soil  and  presumably  the 
correspondingly  high  profit  of  business  enterprises.  Interest  beyond 
the  double  value  of  the  capital  was  prohibited.  See  Wilkinson, 
"Manners,"  etc..  Vol.  I,  pp.  310-312;  Revillotit,  "Les  Obligations," 
etc.,  pp.  44,  53,  65-S9;   "Cours,"  etc.,  Vol.  I,  p.  53. 

^Revilloiit,  "Cours,"  etc..  Vol.  I,  pp.  52-54,  195-220;  "La 
creance,"  etc.,  p.  6;  Pierret,  "Dictionnaire,"  etc.,  pp.  221  seq.,  245 
seq.;   also    Uhlemann,  "Handbuch,"  Vol.  II,  jip.  272  scq. 

2  Bocchoris-Bak-en-r.iu-w  ;  consul!  Picrrrt,  "Dictioiinairej"  etc., 
p.  82. 

'^  Rcvilloul,  "("ours,"  etc.,  \'oI.  I,  j).  19.S. 

^  Rrvillout,  "La creance,"  etc.,  pj).  3  seep:  The  remarkable  Rgyp- 
tiancodcof  morals  "jjrohibited  theabuse  of  authorit}-,  of  social  sta- 
tion, of  till'  power  ,111.11  liinn  lua  liilc,  an  honor,  or  a  magistracy, 
|)rcvcnlr(i  I  ill   doing  of   wrong  1  o  anyone,  the  abuse  of   the  weak,  or 


§8]  ANCIENT    EGYPT  31 

In  the  Egyptian  religion  and  morals  the  love  of  truth 
is  a  supreme  duty;^  truth  and  justice  appear  in  indis- 
soluble relation  and  are  expressed  by  the  same  term 
"Ma,"  personified  in  the  goddess  Ma,  who  guides  the 
dead  to  the  judgment  seat  of  Osiris.^  Ancient  Egyptian 
law  absorbed  its  attitudes  through  a  religious  medium.'^ 

the  enrichment  of  one  at  the  expense  of  another.  These  principles 
were  diametrically  the  opposite  of  those  which  served  as  the  basis 
of  the  constitution  and  law  of  the  Roman  people."  See  also  pp.  55, 
82-86,  102,  114,  202-214,  277.  "In  fact  duty  and  charity  were 
the  two  fundamental  ideas  that  dominated  Egyptian  law  and 
morality."     (p.  82.) 

1  Pierrct,  "Dictionnaire,"  etc.,  pp.  5ül  seq;  also  Revilloul,  "Cours," 
etc.,  Vol.  I,  p.  43. 

"  Pierret,  "Dictionnaire,"  etc.,  pp.  311  seq.  The  goddess  of 
truth  was  "the  daughter  of  Re"  (Ma  set  Ra).  ^vcLepsius,  "Denk- 
mäler aus  Ägypten."  Text  by  Naville  (with  the  co-operation  of 
Bochardt  and  Sethe).  Vol.  Ill,  1900,  p.  181.  Leist,  "Graeco-italische 
Rechtsgeschichte,"  Jena  1884,  p.  573:  "Truth,  in  the  Egyptian 
conception,  was  the  law,  according  to  which  verdicts  were  pro- 
nounced in  the  divine  court  of  the  dead,  and  approximately,  in  human 
courts.  For  this  reason  the  presiding  ofiicer  of  the  highest  Egyp- 
tian tribunal  wore  suspended  from  his  neck  the  badge  of  office  called 
Truth,  similar  to  the  badge  of  office  worn  by  the  Jewish  high  priest." 
Also  pp.  739  seq. 

^  Revillout,  "Cours,"  etc..  Vol.  I,  p.  43.  "Diodorus  Sicullus  in- 
forms us  that  the  older  Egyptian  laws  formed  a  code  divided  into 
eight  books.  Accordingly  in  the  Egyptian  law  the  religious  concep- 
tion and  the  written  regulations  were  inseparable.  Verdicts  were 
rendered  equally  in  the  name  of  the  code  and  in  the  name  of  the 
Gods.  .  .  .  Even  in  the  contracts  of  sale  at  a  relatively  low  period 
of  culture  —  the  originals  of  which  have  been  preserved  on  papyrus 
with  their  attests  and  lists  of  witnesses  — -  there  frequently  appears  a 
religious  oath  in  addition  to  the  purely  civil  formalities."  "In 
ancient  Rome  as  in  Egypt,  religion  and  law  were  at  the  outset  one 
and  the  same.  The  conservators  of  religious  rules  were  also  the 
conservators  of  legal  rites."  (p.  48.)  See  Revillout,  "La  creance," 
etc.,  pp.  84.  114. 


32  ORIENTAL    CIVILIZATION  [Ch.  I 

The  moral  obligations  of  children  towards  their  parents, 
their  support  when  in  need,  and  the  veneration  of  ances- 
tors, developed  upon  a  religious  foundation.  Such 
obligations  were  considered  as  "duties  not  alone  towards 
men  but  towards  God."^  This  highly  developed  legis- 
lation and  ethics  naturally  made  Egyptian  civilization 
the  point  of  dei:)arture  and  the  model  for  the  economic 
institutions  of  Greece  and  Rome. 

§9.  Babylonia  and  Assyria.  1:  Babylonian  and  As- 
syrian Civilization.  The  civilization  of  Babylonia  was 
presumably  older  than  that  of  Egypt.  Tradition  places 
the  origin  of  the  human  race  in  the  vicinity  of  Babylon, 
where  agriculture  early  drove  out  the  nomadic  shep- 
herds; and  this  may  be  the  symbolic  meaning  of  the 
story  of  the  killing  of  Abel,  the  shepherd,  by  Cain, 
the  peasant.  Babylonia  reached  a  considerable 
economic  and  industrial  development,  but  in  mili- 
tary position  was  later  excelled  by  Assyria,  notable 
for  the  triumphs  of  its  generals  from  Sardanapalus  to 
Assarhaddon. 

Conformably  to  the  spirit  of  ancient  civilizations,  the 
king  was  revered;  he  was  the  high  ]:iriest,  the  vicar  of 
the  divine  uix)n  earth.  Slavery  was  a  well -developed 
institution.  The  captive  slaves  were  drafted  for  the 
building  of  jKilaces.  In  later  ])eriods  a  jiortion  of  the 
slaves  attained  a  more  indei)endent  position,  becoming 
merchants  and  the  creditors  of  freemen.-  As  evidenced 
by  Babylonian  tablets,  women  were  cjuaHfied  for  trade 

^  Revillonl,  "La  creance,"  etc.,  p.  215;  also  pp.  202-222.  .  Revil- 
lout,  "La  proprit'lc,"  clc,  p|).  171)  scq. 

"^  Knhlcrixm\  Priscr,  "Aus  dem  babylonischen  Rnlilslcben,"  Vol.  I, 
pp.  1-7;  Vol.  Ill,  p.  H;  Vol.  IV,  pi^.  17  sotp  Rcvillout,  "Les  obliga- 
tions," etc.,  pp.  57  ()4.  Also  Revilloul,  "La  creance,"  etc.,  pp.  137- 
178;  "Les  obligations,"  etc.,  apiuinlix,  \^\).  oG7  37U.  On  slavery 
in  general,  up  to  p.  373. 


§9]  BABYLONIA   AND   ASSYRIA  33 

and  business;^  and  married  or  unmarried  were  on 
occasion  creditors  and  debtors,  buyers  and  sellers,  as 
well  as  bondsmen.-  Yet  along  with  these  privileges,  as 
a  record  of  the  thirteenth  year  of  Nabuchudurusur 
shows,  the  sale  of  women  had  not  been  completely 
abolished.^ 

In  Egypt  the  transfer  of  ownership  was  made  at  the 
time  of  sale,  and  required  immediate  payment;  in  Baby- 
lonia purchase  was  in  the  nature  of  a  contract,  and  as 
in  any  other  obligation,  payment  could  be  postponed 
as  arranged.*  This  more  advanced  type  of  transaction 
makes  it  probable  that  while  the  Romans  derived  their 
"jus  civile"  from  an  Egyptian  model,  their  praetorian 
and  commercial  law  was  derived  from  Babylonian 
sources.^  The  Chaldeans ''  were  the  first  to  develop 
trade  by  instituting  specific  commercial  forms  and  facili- 
ties, marking  the  beginning  of  a  political  economy.''  The . 
modern  word  "capital,"  in  the  sense  of  a  principal  that 

^  Köhler  and  Peiser,  "Aus  dem  babylonischen,"  etc.,  Vol.  I,  pp. 
7-9;  Vol.  Ill,  pp.  8, 10-16;  Vol.  IV,  pp.  10-13.  Revillout,  "Lesobli- 
gations,"  etc.,  appendix,  pp.  318-321,  329-360,  367. 

2  Revillout,  "La  creance,"  etc.,  p.  6. 

^  Kollier  and  Peiser,  "Aus  dem  babylonischen,"  etc..  Vol.  1,  p.  7. 
Also  Kollier  and  Peiser,  "Hammurabi's  Gesetz,"  Vol.  I,  Leipzig 
1904,  p.  118. 

*  Revillout,  "La  creance,"  etc.,  p.  ii. 

^  On  the  development  of  Babylonian  commerce  and  commercial 
law  see  Revillout,  "Les  obligations,"  etc.,  appendi.x,  pp.  374-530. 

^Upon  the  meaning  and  development  of  the  designation,  Chal- 
dean, see  Twesten,  "Die  re\igiö?,en,  politischen,"  etc..  Vol.  II,  p.  416. 
At  present  Chaldean  stands  for  the  same  as  Babylonian. 

'  Revillout,  "La  creance,"  etc.,  p.  102,  says:  "Monetary  science 
was  the  basis  of  Chaldean  law;  the  principles  of  morality  were  the 
basis  of  the  Egyptian  law."  Consult  also  pp.  55,  113,  114,  215- 
222,  277,  278-283. 


34  ORIENTAL    CIVILIZATION  [Ch.  I 

bears  interest,  is  of  Chaldean  origin  —  the  Chaldean 
"Kakkadu"  being  rendered  by  the  Roman  "caput,"' 
a  business  term  and  not  a  legal  one.  The  economic  pros- 
perity and  the  rich  return  of  the  soil  made  possible  a 
high  rate  of  interest,  in  Nineveh  reaching  a  maximum  of 
twenty-five  per  cent,  thirty-three  and  one-third  per  cent, 
or  even  fifty  per  cent  per  annum,-  according  to  the 
risk  involved.  Compound  interest,  prohibited  in  Egypt, 
was  customary  in  Chaldea.^ 

The  Assyrians  were  not  unacquainted  wath  the  pre- 
cepts of  a  progressive  ethics.  An  inscription  extolling 
the  good  works  of  the  Assyrian  king  Sargon  (722-705 
B.C.)  records  his  agricultural  measures,  his  system  of  irri- 
gation and  dams,  and  his  provision  of  repositories  for 
grain,  against  famine;  but  mentions  as  well  his  sense  of 
justice  in  allowing  full  value  for  all  property  condemned, 
in  holding  medicinal  oil  to  the  lowest  price,  in  checking 
speculation  in  sesame  and  corn,  and,  in  general,  "in 
maintaining  law  and  justice,  protecting  the  helpless,  and 
not  oppressing  the  weak."^ 

2:  The  Code  of  Hammurabi.^  Our  knowledge  of 
Babylonian  and  Assyrian  civilization  was  markedly 
and  unexpectedly  enriched  by  the  French  excavations 
in  Susa  in  1901-1902,  conducted  by  the  archaeologists. 
De  Morgan  and  Schcil.  They  found  and  deciphered  a 
tablet  with  the  inscription  of  the  Book  of  Laws  of  the 
so\'ereign  Hammurabi,  who  reigned  in  Babylonia  about 
22r)0  B.C.  This  codex  contains  legislation  concerning 
prosecution    and    ])unishment;     concerning    civil    law, 

'  Rcvillont,    "l.;i   rn'aiiro,"   etc.,   ])p.   .'")('),   .'")9.     Bcrolzhcimer,   "Das 
Vermöjjcn,"  clc,  in  llirlh'.s  Ann.,  I'.lOl,  ]>.  A'.X),  nolo  2. 
"^  Revilloul,  "\:.i  jnoiJiit'ti'-,"  clc.,  p.  111. 
'  Revilloul,  "l,;i  creance,"  etc.,  p.  (If). 
*  Lyon,  "Keilin^ciiiiflcn  Sanson's,"  ])i).  ;M-51. 
''Robert  Ihnjxr,  "(Ode  uf  I  laniniiirabi." 


§91  BABYLONIA   AND    ASSYRIA  35 

including  family  and  inheritance  law;  a  series  of  regu- 
lations corresponding  to  our  commercial  and  industrial 
law;  measures  bearing  upon  water-rights,  rights  of  pas- 
turage, rights  of  tenure,  also  a  public  law,  including 
sacramental  enactments.^  The  resemblance  of  this 
code  to  the  Mosaic  legislation  is  so  striking  as  to  de]:)rive 
the  laws  of  Moses  of  their  originality  and  claim  to  an 
inspired  origin,  but  by  no  means  of  their  comprehensive 
historical  importance.^  The  interpretation  of  the  Code 
of  Hammurabi  has  been  much  disputed,  but  such  dis- 
cussion is  hardly  germane  to  our  purpose.  It  appears 
to  be  a  book  of  instruction  for  judges,  or  a  book  of  infor- 
mation for  the  people,  for  laws  are  in  constant  need  of 
formulation  to  become  practically  available.  Further- 
more, as  originally  promulgated,  ancient  laws  were  uni- 
formly theocratic;  but  this  code  is  distinctly  not  of 
such  character.  It  does  not  set  forth  general  precepts, 
but  is  a  summary  of  practical  measures.  It  contains  the 
decisions  of  mooted  points,  thus  suggesting  an  interpre- 
tation of  the  general  laws  —  much  in  the  spirit  in  which 
the  Talmud  serves  as  a  commentary  upon  the  Scriptural 
text.  The  Code  of  Hammurabi  would  thus  not  be  an 
independent  or  exhaustive  code,  but  an  administrative 
version  of  a  series  of  general  enactments  which  have  been 
lost. 

While  the  Mosaic  legislation  presents  many  points 
of  community  and  resemblance  with  the  Babylonian 
legislation  at  the  time  of  Hammurabi,  it  also  shows  essen- 

^  Köhler- Peiser,  "Hammurabi's  (icsetz,"  pp.  137-139,  174- 
188  seq.  See  also  David  Heinrich  Müller,  "Über  die  Gesetze 
Hammurabis."     Lecture,  March  23,  1904. 

^  Upon  the  relation  between  the  Codex  and  the  Bible  see  particu- 
larly Müller,  "Über  die  Gesetze  Hammurabi's,"  p.  45;  Oettli,  "Das 
Gesetz  Hammurabi's  und  die  Thora  Israels,"  pp.  30-38,  35,  85 
seq.;  Kohler- Peiser,  "Hammurabi's  Gesetz,"  p.  126,  note  2. 


36  ORIENTAL    CIVILIZATION  [Ch.  I 

tial  differences.  That  Jewish  law,  as  also  Jewish  civili- 
zation in  general,  was  influenced  by  Babylonian,  as  well 
as  by  Egyptian  culture,  may  be  regarded  as  established. 
The  historical  value  of  the  Mosaic  legislation  is  not 
thereby  impaired ;  for  it  remains  true  that  in  many  essen- 
tial respects,  notably  in  its  social  ethics,  the  Torah  is 
pervaded  by  a  humane  spirit  that  appears  but  sporadi- 
cally and  imperfectly  in  the  laws  of  Hammurabi. 

§  10.  The  Vedic  Aryans.  Our  knowledge  of  the  life, 
customs,  and  laws  of  the  ancient  people  of  India  is  de- 
ri\'ed  from  the  Vedas.^  The  Vedic  Aryans,  at  the  time 
when  their  wanderings  led  them  to  the  Indus  and  the 
Punjab,  were  a  pastoral  people,  but  were  passing  over 
to  agriculture  and  permanent  occupation.  They  lived 
in  communal  settlements;-  their  political  organization 
may  be  considered  as  resembling  that  of  the  old  Ger- 
manic peoples  —  as  a  group  of  independent  tribes 
associated  for  pillage  or  defense.  The  government  of 
the  tribe,  in  turn  composed  of  clans  occupying  different 
districts,  was  monarchical.  The  king  as  "sat-pati"  held 
superior  authority  in  war.  There  were  assemblages  of 
the  people,  of  the  village,  the  district,  and  the  clan.^ 

^  On  the  meaning  of  Veda  see  Vol.  I,  p.  1,  note  2.  The  poets  of 
the  Indian  Vedas  lived  about  3000  or  4000  years  before  Sayana 
Akärya,  who  assembled  the  ancient  commentaries  upon  the  Rig- 
vcda.     Sä>ana  Akarya  lived  about  1400  A.D. 

^"Gräma,"  village,  together  with  the  culti\ate<l  and  improved 
land  attaehe<l  (o  it.  Its  opposite  is  "Aranya,"  wilderness,  which 
is  uncultivated  land,  partly  woodland.  Zimmer,  "Altindisches 
Leben,"  p.  141;  Lcist,  "Alt-Arisches  Jus  gentium,"  pp.  31-44. 
Upon  the  economic  life  of  the  Aryans  sec  Zimmer,  "Alt-indisches," 
etc.,  pp.  221  235  (Cattle-raising);  pp.  235-243  (Agriculture); 
243  245  (The  (hase);  i)p.  245  255  (Industr>',  etc.);  pp.  255-2Ö0 
(("omnierce  and  ISa\  igation). 

^Zimmer,  ".Alt-ind.,"  etc.,  ])p.  110  set].,  15<S  seq.  Kuhn,  "Zur 
ältesten    Gcschiclile    der    indogermanischen    X'ölker,"    in    Weber's 


§  10]  THE  VEDIC  ARYANS  37 

While  it  is  uncertain  whether  the  castes  of  India  existed 
in  Vedic  times/  it  is  well  to  bear  in  mind  the  four  castes 
—  the  Brahmins,-  the  highest  and  the  most  privileged; 
the  second,  the  military  nobility  or  knights  —  both  of 
these  living  at  the  expense  of  the  third  caste  —  the 
Vaisya  or  Arya,  to  which  the  mass  of  the  people  belonged ; 
and  the  lowest,  the  Sudra,  whose  rights  were  limited 
to  bare  existence.^  Though  polygamy  was  legally  sanc- 
tioned, monogamy  was  the  rule;  and  upon  the  death 
of  the  head  of  the  family  the  eldest  son  succeeded.^ 

Closely  connected  with  the  religious  and  philosophical 
views  of  the  Aryans  are  certain  fundamental  positions 
in  regard  to  the  philosophy  of  law,  which  in  turn  became 
the  antecedents  of  later  legal  and  ethical  developments 
among  the  Greeks  and  Romans.  Foremost  among  these 
philosophical  conceptions  is  "rita,"  which  is  at  once 
the  organized  principle  of  the  universe  and  the  divine 
ordering  of  earthly  life;  as  the  former  it  regulates  the 
appearance  of  sun  and  moon,  of  day  and  night,  and 
embodies  the  unchangeable  principle  that  pervades  the 
succession  of  phenomena;  as  the  latter  it  is  afifiliated  with 

"Indische  Studien,"  Vol.  I,  pp.  321-363;  332:  "Gopa  was  originally 
the  cowherd,  later  protector  and  guardian,  —  particularly  as  an 
appellation  of  the  gods, — and  finally  the  king." 

^Zimmer,  "Alt-ind.,"  etc.  Upon  the  meaning  and  origin  of  the 
word  caste  see  Max  Müller,  "Essays,"  Vol.  II,  "Beiträge  zur  ver- 
gleichenden Mythologie  und  Ethologie,"  pp.  26.5-315. 

^  Brähmanä  refers  to  the  posterity  of  the  wise  and  of  the  priestly 
bards  (Brahman).  See  Weber,  "Über  Haug's  Aitareya-Brahmana," 
in  Weber's  "Indische  Studien,"  Vol.  IX,  1865,  p.  352;  Zimmer, 
"Alt-ind.,"  p.  205. 

^Twesten,  "Die  religiösen,"  etc..  Vol.  II,  pp.  173-251;  Zimmer, 
"Alt-ind,"  etc.,  pp.  205-216. 

'^Zimmer,  "Alt-ind.,"  etc.,  pp.  305-336;  Twcslcn,  "Die  religiösen," 
etc.,  p.  292;  Bernhöjt,  "Altindische  Familienorganisation"  (in 
Z.  f.  V.  Rechtsw.,  Vol.  IX,  pp.  1-45),  declares  his  belief  that  poly- 
andry existed  among  the  primitive  Aryans. 


^  ^  JO  1 


38  ORIENTAL    CIVILIZATION  [Ch.  I 

purpose  and  human  benefit,  and  is  exemplified  in  the 
flow  of  the  rivers  which  fertilize  the  fields;  in  the  cattle 
useful  to  men;  in  the  institutions  of  marriage,  of  the 
monarchical  state,  of  the  patriarchal  home;  and  in 
man's  sense  of  responsibility  for  his  sins. 

The  derivative  conceptions  of  "vrata,"  "dharma," 
"dhäma"  (öe'^ts),  "svadhä"  ^  (eöos),  represent  special 
aspects  of  "rita";  thus  "vrata"  refers  to  any  special- 
ized embodiment  of  "rita";  "svadhä"  to  whatever  is 
sanctioned  by  law,  as  custom  or  practice;  "dhäma"  ^ 
is  the  reahzed  cosmos  corresponding  to  "rita"  as  a  con- 
ception; while  "dharma"  refers  specifically  to  the 
moral  function  of  rewarding  good  and  punishing  evil. 

The  last  has  special  bearings  upon  legal  and  ethical 
rights  and  duties.  Under  its  dominion  the  gods  are 
honored  and  offered  sacrifice,  so  that  an  equivalent 
reward  may  follow.  As  all  law  is  subject  to  the  divine 
regulation,  so  the  State,  the  family,  the  social  structure 
conforms  to  a  ritual.  "Dharma"  thus  acquires  the 
several  meanings  of  the  just,  or  of  the  customary,  or  of 
conformity  to  standards  and  usage.  Specifically 
"dharma"  becomes  the  sum  total  of  pious  duties.  The 
f(jur  commandments,  together  with  five  injunctions, 
form  the  core  of  Ar>an  etliics.  The  four  command- 
ments read:  Thou  shall  honor  the  gods;  Thou  shalt 
honor  thy  parents;  Thou  shalt  honor  thy  country; 
Thou  shalt  honor  the  guest,  especially  when  he  stands 
in    need   of   ]:)rolection.     To   these   are   added    the   five 

'  Lm7,  "(ira>co-italischc  Rcchtsgcsrhirlitt,"  Jcmki  1SS4,  j)]).  175 
seq.;     1S7-  l!t'.);     I'.H)  'iOf);    221;     "Ml -Arisclics    |  us  civile,"  Tart    II, 

^Leist,  "Graeco-italischo  Rcchlsgcschichte,"  \>]i.  I'.lT  sc{|.;  21S; 
"Alt -Arisches  Jus  gentium,"  p.  r)73;  "Alt-Aiisclics  [us  civile," 
r.iil  I,  pp.  ](i-23.  Also  Bhiulsdili's  arliclc,  "Recht,  Rechtsbegriff 
im  i  )fulscheii  Slaatswörtcriiiich,"  in  the  ('>cniuin  Dictionary. 
Bluntschli  and  Brakr,  Vol.  VIII,  pp.  483^85. 


§9]  THE  VEDIC  ARYANS  39 

injunctions:  Thou  shalt  keep  thyself  clean;  Thou  shalt 
hold  thy  senses  in  check,  in  particular,  not  violate; 
Thou  shalt  not  kill;  Thou  shalt  not  steal;  Thou  shalt 
not  lie.^  Such  commands  are  directed  primarily  to 
the  holder  of  property,  to  the  head  of  a  family  as  its 
representative,  who  exercises  the  authority  to  judge  and 
punish  within  the  circle  of  the  home.^  Dharma  thus 
acquires  the  meaning  of  what  is  just  and  customary  in 
conduct.^ 

The  explicit  formulation  of  moral  precepts  is  familiarly 
not  a  guarantee  of  moral  practice;  indeed  the  moral 
consciousness  is  commonly  emphasized  where  temptation 
is  strong  and  transgression  common.  While  the  Vedic 
writings  extol  the  virtues  of  pure  water  and  simple,  whole- 
some living,  the  people  were  given  to  excesses;  wealth  was 
eagerly  sought  and  highly  prized,*  and  crimes  due  to 
avarice  were  common.     Appeals  were  constantly  made 

^Leist,  "Alt-Arisches  Jus  gentium,"  pp.  172-384;  "Alt-Arisches 
Jus  civile,"  Part  I,  pp.  16-23;  61-458. 

^Leist,  "Alt-Arisches  Jus  gentium,"  pp.  59-171;   385-567. 

^Benfey,  "Sanskrit  English  Dictionary,"  p.  432,  gives  eleven 
meanings  to  "dharma" — abbreviated  form  of  "dharman" — virtue, 
merit,  right,  law,  duty,  justice,  character,  or  quality,  resemblance, 
sacrifice,  personified  justice;  and  as  "yama",  the  judge  of  the  dead. 
See  also  Bemlwjt,  "Über  die  Grundlagen  der  Rechtsentwickelung 
bei  den  indogermanischen  Völkern"  (Z.  f.  v.  Rechtsw.,  Vol.  II, 
p.  266).  The  following  regulations  of  trade  and  industry  from  the 
Code  of  Manu  are  interesting,  and  aim  to  fix  just  prices:  (p.  401) 
"The  king  shall  set  the  price  for  purchase  and  sale  of  all  commodi- 
ties according  to  the  place  of  origin  and  destination,  the  period  dur- 
ing which  they  have  been  on  the  market,  the  profit  of  the  seller,  and 
the  expenses  of  the  purchaser."  (p.  402)  "Once  in  five  days  or  in  a 
fortnight,  the  king  shall  publish  the  price  of  commodities  in  the 
market."  (p.  403)  "Every  scales  and  every  weight  shall  be  adjusted 
and  shall  be  tested  at  intervals  of  six  months."  See  Jolly,  "Die 
juristischen  Abschnitte  aus  dem  Gesetzbuch  des  Manu,"  Z.  f.  v. 
Rechtsw.,  Vol.  IV,  p.  339. 

*  Hirzel,  "Gleichnisse  und  Metaphern  im  Rig\'eda,"  pp.  406-408. 


40  ORIENTAL    CIVILIZATION  [Ch.  I 

to  the  gods  for  protection  against  robbery  and  deceit, 
against  slander  and  false  witness. 

Of  interest  to  penology  is  the  fact  that  the  institution 
of  outlawry,  which  is  prominent  in  Germanic  law, 
appears  in  Aryan  law.  The  offender  was  excluded  from 
communal  privileges,  and  was  forced  to  flee  beyond  the 
pale  of  jurisdiction.  In  cases  of  lesser  transgression 
bodily  punishment  was  applied.  In  difficult  issues  of 
law  the  gods  were  appealed  to  for  a  decision;  and,  as 
usual  in  ancient  practice,  civil,  moral,  and  legal  guilt 
were  not  differentiated.^ 

§  II.  The  Jeivish  State. "^  The  Mosaic  dispensation 
is  historically  important,  not  alone  because  of  the 
measures  and  institutions  which  it  established  among 
the  Jewish  people,  but  because  of  the  extensive  circula- 

^Zimmer,  "Altindisches,"  etc.,  pp.  272-276,  283-287;  177 
seq.;  p.  185;  pp.  181-183.  On  page  181  he  says:  "The  true  con- 
ception of  guilt  is  "rna":  "rnavan,"  guilty  and  beset  with  guilt  is  the 
gambler  (Rv.  10,  34,  10),  who  brings  his  family  into  misfortune 
and  attempts  to  appropriate  another  s  wealth  under  cover  of  the 
night.  "Rna,"  guilty,  is  designated  the  thief  "täyu";  Rv.  6,  12,  5. 
"Rna"  frequently  has  the  special  sense  of  debt  in  connection  with 
loans. 

'It  is  difficult  to  decide  to  what  extent  the  Mosaic  commonwealth 
may  be  described  as  a  theocracy.  The  reference  of  the  tribal  dis- 
pensation, as  well  as  of  the  behests  of  law,  morality,  and  ritual  to 
divine  origin,  the  fact  that  the  king,  the  leader  in  war,  likewise 
exercised  the  highest  priestly  office,  that  the  voice  of  God  was  heard 
in  the  words  of  the  prophets  advising  and  admonishing  upon  affairs 
of  states  —  all  this  supports  the  theocratic  interpretation.  But  it 
must  be  borne  in  mind  tliat  llu-  spirit  of  the  period  and  of  tlie 
Oriental  attitude,  as  well  as  the  trend  of  the  cultural  stage  through 
which  the  j)eoi)le  of  Israel  were  passing,  were  sympathetic  with, 
if  not  conducive  to  allied  views,  particularly  as  bearing  upon  tribal 
and  national  pnjtection  and  fortune.  The  insight  of  Moses  as  a 
lawgiver  ai)pcars  in  his  anticipation  of  tlic  iiuxitalilc  organization 
r)f  his  jicoplc  under  a  kingdom,  and  liis  ])n)\isii)ns  for  the  onset  of 
su(  ii  a  Iransfonnation  as  a  jnsl  and  legal  consummation.  Yet  it 
is   evident    llial    iIh-   douiiiiaiuc    of    the    monotluistic    conception, 


§11]  THE  JEWISH  STATE  41 

tion  of  Scriptural  ideas.  Moreover  the  fundamental 
features  of  Jewish  institutions  were  ethical,  and  these 
ethical  concepts  in  turn  shaped  the  teachings  of  Chris- 
tianity. That  the  Mosaic  i)rovisions  were  themselves 
influenced  by  the  institutions  of  Egypt  and  Babylonia 
is  evident,  though  the  central  and  pervading  conception 
of  monotheism  imbues  them  with  a  distinctive,  and  in 
large  measure,  theocratic  ^  trend.  By  the  Jews  them- 
selves the  Mosaic  dispensation  was  regarded  as  divinely 
inspired ;  the  people  of  Israel  were  held  to  be  the  chosen 
people  of  God,  and  the  several  precepts  were  enforced 
by  their  promulgation  as  God's  will  and  command. 
The  dominance  of  the  monotheistic  ^  belief  appears 
in  its  emphasis  by  Moses  as  the  keynote  of  a  national 
religion:  ^  there  is  but  one  God  and  his  name  is  Jahweh.'* 

exemplified  in  the  peculiar  mystery  and  sanctity  attaching  to  the 
appellation  of  the  deity,  influenced  the  entire  range  of  the  political 
and  economic  prescriptions  and  gave  the  religious  aspect  of  philo- 
sophical conceptions  a  commanding  position  in  the  intellectual  and 
practical  as  well  as  in  the  religious  life  of  the  people.  [Translator's 
note  condensed  from  omitted  portions  of  the  text.] 

^Michaelis,  "Mosaisches  Recht,"  Part  I,  §§35,  36.  Wellhausen, 
"Prolegomena  zur  Geschichte  Israels,"  Vol.  I,  pp.  435-451.  "Die 
Theokratie  als  Idee  und  als  Anstalt." 

^  Twcsten,  "Die  religiösen,"  etc.,  Vol.  II,  p.  578:  "We  cannot  re- 
gard the  doctrine  of  the  unity  of  God  as  a  Mosaic  creation  for 
it  is  doubtless  much  older,  but  we  may  regard  as  Mosaic  the  plan 
to  free  this  doctrine  from  the  esoteric  obscurity  of  the  priests  and 
to  elevate  it  to  the  dominant  religion  of  an  entire  people." 

^  Compare  with  Renan,  "Geschichte  des  Volkes  Israel,"  Vol.  I, 
pp.  69  106. 

*  Renan,  "Geschichte,"  etc..  Vol.  I,  p.  101:  "It  was  in  all  proba- 
bility a  foreign  importation  (though  this  is  not  significant)  that 
Jahweh  could  arise  in  Egypt,  while  in  Assyria,  and  particularly  in 
the  neighboring  regions,  Padan-Aram,  of  the  Chaldeans,  who  were 
aff'ected  by  Aramaic  influence,  the  word  Jahou  or  Jahweh  seems  to 
have  been  used  as  a  designation  of  the  divinity."  This  comment 
of  Kenan's  is  certainly  not  an  explanation. 


42  ORIENTAL    CIVILIZATION  [Ch.  i 

The  limitation  of  Jewish  ethics  in  social  practice 
appears  in  that  the  precept,  "Love  thy  neighbor  as 
thyself,"  was  applied  primarily  within  the  fold;^ 
but  when  thus  applied,  it  assumed  the  cliaracter  of  an 
obligatory  assistance  of  those  in  need.  The  poor  were 
cared  for,  but  beggary  was  frowned  upon.  In  a  similar 
spirit  the  taking  of  interest  was  forbidden  as  usury,  for 
it  was  the  exploiting  of  another's  need.^ 

The  practical  regulations  of  the  Mosaic  dispensation 
center  about  the  economic  status  of  an  agricultural 
people.*  Their  practical  prescriptions  and  proscriptions 
embody  an  underlying  principle,  at  times  carried  to  an 
extreme  and  semi-symbolic  form.  The  purity  of  agri- 
cultural products  and  of  animal  strains  was  to  be  main- 
tained. It  was  forbidden  to  sow  with  mixed  seeds,*  to 
mate  different  animal  species,  and  even  to  wear  a  garment 

^  Leviticus  XIX,  18.  "Reg"  is  the  neighbor  in  the  sense  of  every- 
one "with  whom  I  have  any  relation  either  good  or  bad";  thus 
including  the  relation  of  plaintiff  and  defendant.  See  Michaelis, 
"Mos.,"  etc.,  II,  §  72,  p.  16.  He  there  (p.  15)  attempts  to  explain, 
though  unsuccessfully,  why  this  provision  is  placed  among  the 
ci\ic  laws.  The  command  of  neighborly  lo\e  is  based  upon  the 
philoso])hical  interi)retation  which  I  have  given.  For  this  reason 
it  is  directly  related  to  the  law. 

2  Deuteronomy  XXIV,  13;  Exodus  XXII,  24;  Leviticus  XXV, 
35-37;  Psalms  XV,  5;  Ezekicl  XVIII,  8,  13,  17;  Deuteronomy 
X\',  7-11.  See  also  Michaelis,  "Mos.,"  etc..  Part  I,  p.  20;  Pari 
111,  §§152-156.  The  acceptance  of  interest  from  strangers  way 
allowed;   Deuteronomy  XXIII,  21. 

For  the  right  of  the  poor  to  glean,  see  Leviticus  XIX,  0,  10; 
Deuteronomy  XXIV,  19,  20,  21;  Ruth  II,  2-19.  In  regprd  to  the 
produce  of  the  field  in  fallow  years  see  Leviticus  XXV,  5,  6;  Deuter- 
onomy XII,  6-12,  17,  19;  XIV,  22-29;  XVI,  10,  11;  XXVI, 
12,  13.     See  also  Ocltli,  "Das  Gesetz,"  etc.,  p.  88. 

^Michaelis,  "Mos.,"  clc,  I,  §§38-41. 

"  Deutcronoiny  XXII,  0,  ami  Lcxilicus  XIX,  10.  Michaelis,  IV, 
55  218,21',).      Lrviticus  XI.X,  19.      Michaelis  W ,  §220. 


§11]  THE  JEWISH  STATE  43 

partly  of  linen  and  partly  of  wool.  The  Jewish  race 
was  to  be  kept  ]:)ure ' ;  sexual  excesses  were  punished  by 
stoning;  debilitating  luxuries  were  to  be  avoided;  the 
daily  life  was  to  be  kept  clean.  Offspring  were  looked 
upon  as  the  blessing  of  God;  to  the  first-born  were 
reserved  special  privileges,'-  both  in  the  religious  and  the 
economical  institutions,^  but  the  daughters  were  excluded 
from  inheritance.^ 

Among  the  more  special  economic  provisions  the  regu- 
lation of  land  tenure  is  characteristic.  It  is  to  be  noted 
that  the  Mosaic  dispensation  applied  to  a  people  who 
were  about  to  take  possession  of  a  land,  free  from  tlie 
complications  of  ancestral  rights  or  constituted  privi- 
leges. The  land  was  to  be  divided  among  the  people  of 
Israel  by  lot,  thus  preventing  concentration  of  ownership 
in  large  estates;  but  all  possession  was  conditioned  by 
the  institution  of  the  year  of  Jubilee.''  Once  in  fifty  years 
the  land  reverted  to  the  original  owner,®  so  that  in  prin- 
ciple it  was  not  the  land  that  was  sold  but  only  its  returns 

1  Leviticus  XX,  IS.     Michaelis,  V,  §  271. 

^Michaelis,  "Mos.,"  etc.,  II,  §84.  Deuteronomy  XXI,  17. 
Michaelis,  II,  §  79.  Anders,  "Codex  Hammurabi,"  §§  165,  167. 
See  above  §  9,  pp.  51  seq. 

^  Moses  was  unable  to  exterminate  the  prevalent  polygamy. 
He  so  modified  it  that  the  abuses  attaching  to  the  practice  were 
as  far  as  possible  minimized.  See  Michaelis,  "Mos.,"  etc.,  II,  §§  94- 
97. 

•*  They  had  no  share  in  the  father's  house  and  were  regarded 
as  strangers.  Genesis  XXXI,  14,  15.  Numbers  XXVII,  2,  3,  4. 
Upon  this  point  and  its  exceptions  see  Michaelis,  "Mos.,"  etc.,  II, 
§78.  Anders,  "Codex  Hammurabi,"  §§180,  181,  183,  184.  See 
above  §  9,  pp.  51  scq. 

^  From  "Jobel,"  a  musical  instrument  with  which  the  fiftieth  year 
was  heralded  on  December  10th,  or  more  correctly  from  "Jabal" 
(Syrian)  to  succeed;  Jubal,  succession.  Michaelis,  "Mos.,"  etc., 
II,  p.  20,  note  *. 

^  Leviticus  XXV, 


44  ORIENTAL    CIVILIZATION  [Ch.  i 

until  the  next  ensuing  year  of  Jubilee. '^  Similarly  once 
in  seven  years,  by  divine  command,  the  land  was  to  lie 
fallow;^  and  as  among  an  agricultural  people  a  debtor 
was  dependent  upon  his  crops  to  repay  his  loan,  no  pay- 
ment was  exacted  during  such  sabbatical  year.^  The 
spirit  of  consideration  thus  inculcated  extended  to  the 
humane  care  of  animals,*  to  leniency  towards  the  un- 
fortunate, and  to  charity  towards  the  dependent.^ 
Though  the  agricultural  pursuits  of  peace  determined 
the  economical  regulation,  the  contingencies  of  war  were 
prepared  for.  At  stated  periods  a  census  of  all  the  people 
was  taken;  and  military  service  was  exacted  of  all  male 
adults  above  twenty  years  of  age,  the  Levites  alone  being 
exempt.  It  is,  however,  but  natural  that,  despite  its 
ethical  and  cultural  provisions,  the  Mosaic  dispensation 
should  reflect  the  dependence  of  Jewish  civilization  upon 
ancient  tradition  and  usage.  Thus  slavery,  though  mod- 
erated in  its  exactions,  was  retained;  and  the  purchase 
of  wives,  though  not  universal,  was  customary.^  The 
right  of  retaliation  for  bodily  injury  and  the  institution 
of  vengeance  by  the  near  of  kin  were  likewise  sanctioned ;  ^ 

1  Leviticus  XXV,  14-16;  Leviticus  XXV,  23.  According  to  the 
Egyptian  model  in  which  Pharaoli  is  the  owner  of  the  land,  see 
Genesis  XLVI I,  20. 

2  Leviticus  XXV,  1-8. 

3  Deuteronomy  XV,  1,  2.     Michaelis,  "Mos.,"  etc.,  Ill,    §   157. 
'' Deuteronomy  XXII,  10;    the  prohibition  of   yoking   an   ox  to 

an  ass  for  ploughing;  Deuteronomy  XXV,  4;  "Thou  shalt  not 
muzzle  the  ox  when  he  trcadcth  out  the  corn."  Michaelis,  "Mos.," 
etc.,  Part  II,  §  130. 

^Oeltli,  "Das  Gesetz,"  etc.,  pp.  30-38;  3.5. 

«Genesis  XXIX,  15,  20;  XXXIV,  12.  Also  Genesis  XXXI, 
15,  IC).     Michaelis,  "Mos.,"  etc.,  II,  §§S5,  SO. 

'  I.x.kIus  XXI,  23-27;  Leviticus  XXIV,  19,  20.  Deuteronomy 
XIX,  10.     Michaelis,  "Mos.,"  etc.,  V,  §§  240  242. 


§12]  THE  JEWISH  STATE  45 

though  here  again  the  spirit  of  equity  is  indicated  by  the 
establishment  of  places  of  refuge  for  unintentional 
murder.^ 

§  12.  The  Phoenicians.^  In  older  civilizations  com- 
merce was  limited  to  within  the  country  or  to  the  adjoin- 
ing territory.  The  rocky  coast  of  Plioenicia  gave  little 
opportunity  for  agriculture  or  cattle  raising,  and  the 
Phoenicians  turned  their  energies  to  maritime  trade,^ 
serving  the  ancient  world  as  the  mediaries  of  international 
exchange,  and  laying  the  basis  for  a  prosperous  merchant- 
class,  that,  through  the  power  of  capital,  was  destined 
to  overshadow  that  of  the  productive  artisan.  Therein 
lies  the  importance  of  the  Phoenicians  for  the  student  of 
the  philosophy  of  law  and  economics.  Indirectly  the 
great  economic  development  following  upon  the  enlarge- 
ment of  trade  made  necessary  an  extension  of  legal  regu- 
lations; and  this  in  turn  culminated  in  the  constitutional 
model  of  the  Greek  city-state,  the  "polls." 

1  Genesis  IX,  5,  6;  Exodus  XXI,  12,  13,  14;  Numbers  XXXV; 
Deuteronomy  XXIX,  1-10.  Michaelis,  "Mos.,"  etc.,  7,  II,  §§  131- 
137.  Concerning  the  law  of  blood  vengeance  of  the  Eg^'ptians  and 
the  Jews,  see  a\soLeist,  "Grseco,"  etc.,  note  29  to  §  53,  pp.  742-751. 

2  Twesten,  "Die  religiösen,"  etc..  Vol.  II,  pp.  537-544. 

^  It  is  not  known  when  the  Pha?nician  voyages  began ;  they  were 
well  established  in  the  fifteenth  century  before  Christ.  Later  the 
Phoenicians  were  repulsed  by  the  Greeks.  See  Eduard  Meyer,  "Ges- 
chichte des  Altertums,"  Vol.  I,  Stuttgart  1884,  pp.  230,  311,  336  seq. 


46  GREEK    CIVILIZATION  [Ch.  II 


CHAPTER  II 

THE  ANCIENT  COMMONWEALTH:   GREEK 
CIVILIZATION 

THE  GREEKS  BEFORE  PLATO:  (1)  FUNDAMENTAL  GREEK  CON- 
CEPTIONS; (2)  SUBJECTIVISM  AND  OBJECTIVISM;  (3)  THE  PYTHA- 
GOREAN PHILOSOPHY;  (4)  THE  PHILOSOPHY  OF  HERACLITUS;  (5) 
THE  SOPHISTS;  (G)  THE  SOCRATIC  PHILOSOPHY.  — PLATO:  (1)  THE 
PLATONIC  CONCEPTION  OF  VIRTUE;  (2)  PRACTICAL  JUSTICE  AND 
SOCIAL  VIRTUE;  (3)  THE  IDEAL  AND  THE  REAL  STATE;  (4)  THE  IN- 
FLUENCE OF  PLATO.—  ARISTOTLE:  (1)  THE  BASIS  OF  ETHICAL  CON- 
DUCT; (2)  THE  GREEK  ARISTOCR.^T;  (3)  SOCIETY  AND  THE  STATE; 
(4)  JUSTICE  AND  EQUITY;  (.5)  THE  ORIGIN  OF  CIVIC  LIFE.— THE 
POST- ARISTOTELEAN  PERIOD:  (1)  THE  CYNICS;  (2)  THE  CYRENAICS; 
(3)  THE  STOICS;  (4)  THE  EPICUREANS;  (5)  THE  SCEPTICS;  (G)  THE 
NEO-PLATONISTS. 

§  13.  The  Greeks  before  Plato.  1 :  Fundamental  Greek 
Conceptions.  Philosophical  conceptions  were  current 
in  Greece  before  its  philosophers  formulated  their  views 
upon  the  nature  of  law  and  the  origin  and  purpose  of 
government.  Among  these  energy  or  nature,  as  already 
noted  in  considering  Egyptian  culture,  was  the  object 
of  reverence.  "Nature,"  or  the  "natural  order"  or  "con- 
formity to  nature"  is  a  philosophical  conception ;  it  bears 
ui)on  the  philosophy  of  law,  and  makes  it  pertinent  to 
consider  how  it  was  conceived  by  the  Greeks.  ".4>t/o-is" 
is  the  quality  or  (lis])()siti(jn  of  nature,  the  essence  of  a 
person  (^r  thing,  as  derived  from  the  conception  of  its 
growth,   genesis,   or  development.^      Accordingly    ^Jrrts 

'  Vdviccl;,    "( iriccluscli-lalcinischcs   etymologisches  Wiirterhuch," 
\'(.l.   II,   l.rip/.ii;    1S77,  pp.  IllO,  i\\\',\. 


§13]  GREEKS  BEFORE  PLATO  47 

is  the  order  or  constitution  of  nature  —  nature  as  a 
generating  creative  force,  developing  from  the  spontane- 
ous energy  inherent  in  material  objects  without  the  in- 
tervention of  human  artificial  agencies.  Nature  is  natural 
energy.  What  the  Vedic  Aryans  expressed  as  "rita" 
became  "<^vo-ts"  to  the  Greeks.^  While  the  ancient  Aryans 
made  it  a  distinctively  religious  or  divine  quality,  the 
Greeks,  with  their  analytic  insight,  recognized  it  as  the 
underlying  basis  of  natural  growth,  as  energy. 

To  the  Aryan  "dhama"  there  corresponds  the  Greek 
"öe'/xts."  In  the  Greek  conception,  Themis,  as  a  phase 
of  the  natural  order,  comprises  the  fact  of  sex  and  gen- 
eration, marriage,  and  the  filial  relation.  These  were 
conceived  as  divinely  established,  as  in  general  a  divine 
decree  underlies  all  that  is  expressed  in  Themis.  It 
was  by  virtue  of  the  revelation  by  Zeus  in  Dodona,  and 
by  the  oracle  of  the  Delphic  Apollo  through  which  the 
"öe/xto-Tcs"  of  Zeus  were  proclaimed,  that  Themis  became 
the  possession  of  mankind.  The  earthly  representatives 
of  Themis  are  the  "Dicaspoloi"  in  the  Agora.  The  pro- 
tection of  the  stranger  likewise  falls  to  the  province  of 
Themis." 

Co-ordinate  with  Themis,  the  humane  and  worldly  Dike 
exercises  influence  upon  Greek  law  and  practice.  Dike, 
deified  as  a  daughter  of  Zeus,  holds  sway  in  the  Agora, 
and  secures  for  the  litigants  a  lawful  and  just  procedure 
in  civil  as  well  as  in  criminal  cases.  To  her  is  accorded 
the  like  divine  authority  that  belongs  to  Themis;  and 

^  See,  above,  §  10. 

^SeeLeist,  "Graeco-ital.,"  etc.,  pp.  20.5-211,  211-216,  662,  and 
the  references  there  found.  Also  Vanicek,  "Griechisch.,"  etc.,  Vol.  I, 
p.  377;  Curtius,  "Grundzüge  der  griechischen  Etymologie,"  fifth 
edition,  Leipzig  1879,  p.  254;  Bernhöft,  "Über  die  Grundlagen  der 
Rechtsentwickelung  bei  den  indogermanischen  Völkern,"  Z.  f.  v. 
Rechtsw.,  Vol.  II,  p.  283;  Leist,  "Alt- Arisches  Jus  civile,"  Part  I, 
p.  90;  Part  II,  pp.  4,  56,  87. 


48  GREEK    CIVILIZATION  [Ch.  ii 

Zeus  supports  her  plea  whenever  she  approaches  his 
throne  in  behalf  of  clemency.^ 

Hybris^  appears  as  the  source  of  all  evil ;  it  is  the  rebel- 
lion of  men  against  the  gods,  presumption,  the  over- 
stepping of  the  limits  set  to  human  conduct,  whence 
arises  the  rebellious  mood  and  the  resulting  wrongdoing. 

The  Erinyes,^  prompt  and  ready  to  reprove,  and  the 
Eumenides  to  reward,  stand  as  the  protectors  of  the 
eternal  order  of  things;  they  are  the (  forces  of  nature 
and  life  personified  in  feminine  form.  In  conjunction 
with  the  ancient  Greek  conception  of  spiritual  atone- 
ment, the  expiation  of  a  threatened  or  accomplished  dis- 
honor, there  arises  the  duty  of  vengeance.     Such  pious 

^Leist,  "Grseco,"  etc.,  pp.  211,  508-515,  662;  Curtius,  "Grund- 
2üge,"  etc.,  p.  134;    Vanicek,  "Griechisch,"  etc.,  pp.  328  seq. 

^  Upon  Hybris  see  Curtius,  "Grundzüge,"  etc.,  p.  540;  Leist, 
"Alt-Arisches  Jus  civile,"  p.  95;  Hildenbrand,  "Geschichte  und 
System  der  Rechts-  und  Staa'tsphilosophie,"  I,  p.  63.  Lassalle, 
"Die  Philosophie  Herakleitos  des  Dunklen  von  Ephesos,"  Berlin 
1858,  Vol.  II,  pp.  445  seq. 

3  Plutarch,  "Isis  et  Osiris,"  c.  48.  K.  0.  Müller,  "Aeschylos' 
Eumeniden,"  pp.  126-151.  Hildenbrand,  "Geschichte,"  etc.,  I, 
p.  63.  Leist,  "Grseco,"  etc.,  pp.  286  423.  Curtius,  "Grundzüge," 
etc.,  p.  344.  Schamann,  "Griechische  Altertümer,"  Vol.  II, 
pp.  337-354,  Pfleiderer,  "Religionsphilosophie  auf  geschichtlicher 
Grundlage,"  second  edition,  Vol.  II;  "Gcnelisch-spcculative 
Religionsphilosophie,"  Berlin  1884,  p.  500.  Rohde,  "Psyche,"  I, 
pp.  259-277;  11,  j.p.  101,  40.5.  Bachofen,  "Das  Mutterrecht. 
Eine  Untersuchung  über  tlie  Gynaikokratie  der  allen  Welt  nach 
ihrer  religiösen  und  rechtlichen  Natur,"  Stuttgart  1861,  §§25-29, 
pp.  44-58:  (p.  51)  "  'EptviJS  is  thus  the  name  of  the  divinity  residing 
upon  the  earth.  The  Erinyes  are  the  powerful  forces  within  the 
earth,  —  children  of  the  night.  They  bring  forth  all  life  in  the  dark 
dcptlis  of  matter.  What  the  earth  brings  forth  in  its  growths 
is  their  gift,  their  generation.  Men  and  animals  they  nourisli; 
they  make  the  fruit  of  the  womb  i)ros])er.  If  they  arc  displeased 
then  all  decays,  the  fruit  of  the  earth,  the  offspring  of  men  and 
animals." 


§  13]  GREEKS  BEFORE  PLATO  49 

obligation  towards  a  murdered  kinsman  was  recognized 
by  the  Greeks,  especially  by  the  Athenians.  The  Erinyes 
were  pictured  as  relentlessly  pursuing  tlieir  victim,  and 
became  the  active  personification  of  a  guilty  conscience. 

According  to  Homer,  Nemesis^  is  the  displeasure  which 
the  disobedience  of  Tliemis  calls  forth;  according  to 
Aristotle,  2  Nemesis  is  the  spirit  of  resentment  against 
good  fortune.  Nemesis  thus  becomes  a  retributive  jus- 
tice equalizing  the  fortunes  of  men. 

2:  Subjectivism  AND  Objectivism.  While  the  thought- 
processes  of  primitive  man  are  primarily  perceptive, 
civilized  man  conceives  the  world  in  terms  of  ideas. 
Early  cultures  stand  closer  to  the  thought-habits  of  primi- 
tive man;  in  them  the  perceptual  view  of  things  domi- 
nates while  the  conceptual  attitude  is  yet  to  be  developed. 
To  the  contrast  of  perception  and  conception  as  applied 
to  the  sensory  apprehension  of  the  material  world,  there 
corresponds  the  like  contrast  of  feeling  and  thought  as 
applied  to  the  cultivation  of  the  beautiful,  the  moral, 
and  the  just.  At  the  lower  cultural  levels  commendation 
proceeds  upon  an  instinctive  feeling,  and  the  socially 
and  traditionally  acceptable;  while  civilized  man  judges 
and  determines  the  beautiful,  the  ethical,  and  the  just, 
by  the  aid  of  reason  and  philosophy.^  Yet  in  a  last  analy- 
sis all  ideas  growing  out  of  a  knowledge  of  the  material 
world  are  derived  from  experience,  and,  in  so  far,  from 
perceptions;   for  otherwise  they  would  be  illusory,  with- 

^  Upon  Nemesis  see  Schelling,  "Philosophie  der  Mythologie." 
Collected  works,  II,  2,  p.  143.  Bernhöft,  "Über  die  Grundlagen," 
etc.,  Z.  f.  V.  Rechtsw,  II,  p.  2S4. 

"^Aristotle,  Rhcl.  IX  (Sylb.  SO,  7):  d  yap  ^(ttl  to  vefieaav 
XevTTtL'iOaL  iwl  tw  ^aivo/AeVuj  dva$tw<;  ivrrpayeli'. 

^Compare  pp.  178-21.5  in  Vol.  I  of  Berohheimer,  "System  der 
Rechts-  und  Wirtschaftsphilosophie"  ("Kritik  des  Erkenntnisin- 
haltes"). 


50  GREEK  CIVILIZATION  [Ch.  ii 

out  real  foundation.  Practical  philosophy,  despite  its 
intellectualistic  setting,  proceeds  upon  an  empirical  and 
impressionistic  foundation.  In  a  more  advanced  civil- 
ization the  conceptual  aspect  of  things,  distinctive  of 
an  enlightened  attitude,  predominates;  and  the  strong 
emotional  factor,  prevalent  in  a  less  developed  civili- 
zation, declines.  In  all  primitive  stages  of  culture, 
ethical  and  legal  \'alues  are  established  under  conditions 
dominated  by  the  emotional  attitude,  and  practical  phil- 
osophy appears  in  religious  guise  —  a  stage  of  develop- 
ment observable  in  Greek  thought. 

When  in  Greece  the  educated  classes  freed  themselves 
from  traditional  religion,  and  natural  philosophy  was 
developed,  the  fundamental  conceptions  of  ethics  and 
law,  which  until  then  were  enforced  by  religion,  were 
no  longer  secure;  and  a  different  foundation  was  sought. 
Philosophy,  by  thus  realizing  the  alternative  either  of 
assuming  the  possibility  of  an  objective  standard  of 
conduct  or  of  approaching  the  inquiry  wholly  without 
prejudice,  was  confronted  by  the  fundamental  problem 
of  the  existence  of  an  objective  criterion  of  right  and  wrong. 

Continuously  from  their  Greek  beginnings  the  two 
trends  persist,  though  with  shifting  import  and  applica 
tion.  The  contrast  involved  may  be  described  as  that 
of  idealism  and  realism,  or  of  dogmatism  and  scepticism. 
Yet  all  such  appellations  are  misleading  by  reason  of 
the  very  different  philosophical  implications  which  the 
terms  now  carry;  they  increase  rather  than  remove  con- 
fusion. The  terms  "objectivism"  and  "subjectivism" 
seem  preferable.  Objectivism  holds  in  general  that  an 
objcclive  standard  of  riglit  action  exists;  subjectivism, 
tli;i1  I  here  is  no  sncli  standaid,  but  tliat  right  action  is 
dclcnnincd  1)>'  human  choice. 

Of  llic  disliiictive  changes  lliat  obje(li\  ism  and  sub- 
ject i\ism  have  undergone  in  the  history  of  the  ]ihilosophy 


§  13]  GREEKS  BEFORE  PLATO  51 

of  law,  the  following  may  be  noted:  in  Greek  philosophy 
the  problem  appeared  as  the  question  whether  right 
action  was  ordained  by  nature  or  by  human  enactment; 
in  the  mediaeval  attitude  it  appeared  as  the  expression 
of  the  divine  spirit  through  the  medium  of  the  dogma 
of  the  Catholic  Church,  and  subjectivism  became  equiv- 
alent to  impiety  or  heresy;  in  the  doctrine  of  Natural 
Law  objectivism  claimed  to  have  found  a  principle  of 
right  action  and  of  natural  right ;  in  the  modern  philos- 
ophy of  law  the  idealistic  position  becomes  objective, 
and  assumes  the  existence  of  an  inherent  conception  of 
right  ("Rechtsidee"),  while  realism  stands  for  the  posi- 
tion that  might  is  right. 

The  Greek  statement  of  the  distinction  between  what 
is  ordained  by  nature  or  by  custom,  "^wei  —  vo/ao) 
St'icaioi/,"  1  fails  to  indicate  the  most  general  bearing  of 
the  problem,  and  in  the  first  member  of  the  alternative 
(Nature)  somewhat  anticipated  the  solution.  For  in 
this  alternative  the  objective  basis  of  right  action  is 
made  equivalent  to  that  which  is  ordained  in  and  ex- 
pressed through  the  natural  order  of  things.  In  support 
of  the  assumption  of  an  ideal  or  standard  of  right  action, 
the  objectivist  position  must  be  able  to  refer  to  an  ad- 
mittedly or  presumably  conclusive  principle.  This  is 
found  in  the  sense  of  right  as  part  of  the  psychological 
endowment  of  human  nature.  While  variously  expressed 
at  different  periods,  this  is  its  common  and  consistent, 
though  at  times  but  vaguely  recognized,  basis. ^ 

3:  The  Pythagorean  Philosophy.  Objectivism  finds 
its   first   development   in    Pythagoras''  (about   582-500 

1  See  below,  §  16.     Also  Ahrens,  "Natiirrccht,"  p.  36. 

^  This  belongs  to  the  sentiments;  "  Erkenntnisgcfiihl."  See 
Vol  I  oi  Berolzheimer,  "System,"  etr.,  pp.  310-317. 

^  Ritter,  "Geschichte  der  pythagoreischen  Philosophie,"  Hamburg 
1S26,  particularly  pp.  87  seq. 


52  GREEK  CIVILIZATION  [Ch.  II 

B.C.)  as  a  direct  issue  of  the  Pythagorean  philosophy 
of  numbers.  Like  all  symbolic  systems,  the  symbolism 
of  number  is  open  to  attack.  While  in  the  symbolic 
philosophy  itself  the  ascribed  quality  is  understood  to 
be  a  mere  symbol,  yet  it  leads  the  symbolist  to  accept 
the  appearance  for  the  reality,  and  thus  makes  the  pro- 
totype or  analogy  the  real  essence  that  adequately  ac- 
counts for  the  thing  itself.^  Again  the  disciples,  if 
not  the  founder  of  a  symbolic  system,  drift  to  fanciful 
analogies,  and  arbitrarily  combine  wholly  unrelated 
conceptions  on  the  basis  of  a  sui^erficial  relation  or 
resemblance.  Both  faults  are  found  in  the  Pythagoreans; 
the  first  in  Pythagoras  himself  and  the  other  in  his 
followers.  For  example,  there  are  assumed  to  be  ten 
virtues  corresponding  to  the  ten  celestial  spheres. 

Yet  the  valuable  and  significant  part  of  the  Pythago- 
rean doctrine  is  found  not  in  its  syml)olism  but  in  its 
treatment  of  justice.  For  the  first  time  an  attemjit  is 
made  to  establish  an  objective  justice  in  the  spirit  of 
that  conception.  Pythagoras  calls  justice  the  "equal 
multii)lc  of  itself."  This  phrase  is  transmitted  through 
Aristotle,  "(iptö/xos  urnKts  (,'o-os."  ^  It  is  regularly  referred 
to  as  the  square  number.^  Hegel  interprets  it  by  say- 
ing that  "justice  is  called  the  'c(]ual  multiple  (or  power) 
of  itself   in   that    it    ever    retains  a    like    quality.     So 

'  Upon  the  Egyptian  inlluence  upon  Cirt'ck  philosophy,  especially 
upon  the  Pythagorean,  see  Wilkinson,  "The  manners  and  customs  of 
the  ancient  Egyptians,"  \'ol.  II,  pp.  491  .^)10;  nho  BarJwfcn,  "Das 
Mutterrecht."  Upon  tiie  Indian  inlluence  on  (he  Pythagorean 
philoso[)hy,  especially  the  belief  in  the  transmigration  of  the  soul, 
see/v.  V.  Schrocdcr,  "Pythagoras  und  die  Inder.  Eine  Ifntersuchung 
über  Herkunft  und  Abstammung  der  p>'lhagoreisclien  Lehren," 
Leipzig  1SS4. 

^Aristotle,  "Magna  Moralia,"  I,  1,  (1. 

'.S'.  Ilildciihrtuid,  "( '.eschichte  und  System  der  Rechts-  und 
Slaatsphil(jsophie,"  I,  p.  .'35. 


§13]  GREEKS  BEFORE  PLATO  53 

justice  was  determined  by  that  number  which,  itself 
even,  when  multiplied  by  itself,  remained  even  (equal)."  ^ 
From  Aristotle  we  learn  that  the  Pythagoreans 
considered  reparation  or  retribution,  "To  dvTiTreTrovöos," 
the  absolute  objective  justice;^  and  thus  the  "doubly 
equal  number"  is  interpreted  as  retribution.^  Erdmann, 
in  support  of  the  Pythagorean  procedure  but  without 
a  detailed  elucidation  of  the  phrase,  "dpiOfib?  iVaKts  i'o-os," 
comments:  "That  for  which  Aristotle  criticized  the 
Pythagoreans,  namely,  their  mathematical  formula  of 
justice,  is  to  be  commended  as  consistent;  even  their 
designation  of  "dptOfio^  io-a/cis  I'o-os"  is  intelligible  when 
it  is  recalled  that  they  conceived  justice  as  retributive."* 
I  confess  that  these  interpretations  impress  me  much 
as  the  splendor  of  the  king's  apparel  appeared  to  the 
nai've  lad  in  Andersen's  fairy  tale:  where  all  the  rest 
gazed  and  admired,  he  could  see  only  the  naked  fact. 
Accepting  "d/otö/Aos  to-ctKts  lo-os"  as  "the  square  number," 
one  is  met  by  the  obvious  fact  that  there  is  no 
such  thing  as  the  square  number;  there  is  not  a  single 
or  unique  square  number,  but  innumerable  ones:  1,  4, 
9,  16,  25,  etc.  Nor  is  it  likely  that  the  series  as  a  whole 
is  referred  to.  Hegel's  interpretation,  "A  number  itself 
when  multiplied  by  itself  remains  even  (equal),"  is  not 
apposite.  For  in  the  first  place  "equal"  is  not  the  same 
as  "even";  and  secondly,  every  even  number  when  mul- 
tiplied by  itself  remains  even.  Therefore,  if  the  meaning 
had  been,  "The  number  which,  itself  even,  when  multi- 
plied by  itself,  remains  even,"  it  would  have  been  enough 

1  "Vorlesungen  über  die  Geschichte  der  Philosophie,"  I,  Collected 
Works  13,  p.  273. 

^Aristotle,  "Ethic.  Nicom.,"  V,  5  (S),  1:  "SoKti  8e  tl(tl  to  avmrt- 
TTOvöos  civat  ttTi-Aws  StKatov,  uxTTTip  OL  Hvßayopttoi  ecfiatrav. 

ä  Ritter,  "Geschichte  der  pythagoreischen  Philosophie,"  p.  88. 

^Erdmann,  "Grundriss  der  Geschichte  der  Philosophie,"  I,  p.  33. 


54  GREEK  CIVILIZATION  [Ch.  II 

to  say  "even  numbers."  Moreover  "dpiö/^os  lo-aKts  to-os" 
does  not  mean  "multiplied  by  itself"  (or  a  square  num- 
ber), but  literally  means  "equally  equal,"  or,  more  freely 
and  clearly  translated,  "an  equal  multiple  of  itself."  But 
equal  multiples  of  themselves  are  all  numbers  whose 
factors  are  all  the  same  and  are  present  an  equal  num- 
ber of  times  with  the  digit  itself;  or  simply,  the  powers 
of  a  number  equal  to  the  number.  Thus  the  second 
power  of  two,  2X  2=4;  the  third  power  of  three,  3X3 
X  3=  27;  the  fourth  power  of  four,  4X  4X  4X  4=  256, 
etc. 

As  noted,  justice  is  not  to  be  symbolized  by  a  series 
of  numbers  but  by  a  specific  number;  accordingly  but 
one  of  the  series  is  to  be  selected  as  its  symbol,  and  this 
may  well  be  the  number  four.  In  the  first  place  the 
Pythagorean  philosophy  of  numbers  is  confined  chiefly 
to  the  digits,  1  to  10.  And  the  number  10  itself,  "deka," 
is  derived  from  "four"  in  that  10=1+2+3+4.  Again 
"four"  answers  to  the  definition,  an  "equal  multiple 
of  itself,"  ^  that  is,  the  power  whose  exponent  (2)  is 
the  same  as  its  base  (2).  The  "dptö/xos  to-aKts  tVos"  is  thus 
presumably  four,  that  is,  not  any  square  number,  but 
specifically  the  square  of  2. 

In  the  Pythagorean  philosophy  retribution  indicates 
the  spirit  of  justice  and  is  not  restricted  to  punishment.^ 
The  word  is  not  used  in  the  sense  ordinarily  conveyed 

1  Passow,  "Handwörterbuch  der  griechischen  Sprache,"  Vol.  I, 
Part  2.  This  view  of  mine  is  not  new  but  its  establishment  may  be 
so.  L.  V.  Schröder,  in  "Pythagoras  und  die  Inder,"  actually  observes, 
I)ut  without  proof  (p.  80):  "Four  is  the  symbol  of  justice";  (p.  81): 
"They  (the  Pythagoreans)  said  that  justice  consisted  in  the  equally 
equal  or  the  scjuare  number,  because  it  returns  like  for  like,  and 
they  designated  four,  being  the  first  square  number,  or  nine,  as 
the  first  uneven  square  number,  justice." 

^  See  the  admirable  exposition  in  Hildenbrand,  "Geschichte,'' 
etc.,  p.  50. 


§  13]  GREEKS  BEFORE  PLATO  55 

in  penology,  but  means  the  fixing  of  an  equivalent  repara- 
tion.^ This  conception,  however,  bears  upon  an  impor- 
tant view  of  justice,  or  the  concept  of  right,  which 
reappears  repeatedly  in  the  historical  survey  of  the  phil- 
osophy of  law.  In  addition  the  Pythagorean  school  is 
notable  for  the  formulation  of  a  practical  ethical  reg- 
ulation of  life,  and  along  with  Aristotle,^  for  its 
advancement  of  ethical  principles. 

4 :  The  Philosophy  of  Heraclitus.  The  Pythagorean 
position  would  favor  an  objective  basis  of  justice  in  so 
far  as  an  objectively  expressed  justice  would  imply  its 
objective  establishment,  and  thus  its  independence  of 
human  convention.  On  the  other  hand  a  philosophy 
that  sceptically  questions  the  reality  of  the  world  itself 
would,  if  consistent,  deny  the  objective  basis  of  justice. 
In  thisrespectthephilosophy  of  Heraclitus,^  the  Obscure 
(about  535-475  B.C.),  is  not  consistent.  His  philosoph- 
ical position  is  indicated  in  the  formula,  Travra  ptt. 

According  to  him  nothing  is  real ;  there  is  only  a  becom- 
ing and  a  decaying;  nothing  is  abiding  and  real  except 
change  itself.  Thus  mutability  is  made  real,  while  the 
reality  of  the  world  is  denied. 

In  a  sense  the  philosophical  position  of  Heraclitus 
reappears  in  the  dominant  trend  of  later  nineteenth 
century  thought.  For  the  philosophy  of  evolution,  ex- 
pressed idealistically  by  Schelling  and  Hegel,*  and  real- 

^  See  Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  Munich 
1903,  pp.  14-16,  30-39,  86,  129,  131-133,  135,  141  seq.,  153-158, 
167  seq.,  177  seq.,  191  seq.,  203-205,  261,  318  seq.,  433,  440,  446 
seq.,  449,  454,  458  seq.,  472,  478-480,  488  seq.,  491,  508-518. 

2  "Magna  Moralia,"  I,  1. 

^  On  Heraclitus  consult  Lassalle,  "Die  Philosophie  Hcrakleitos 
,  des  Dunklen  von  Ephesos,"  2  vols.,  Berlin  1858.  Hildenbrand, 
"Geschichte,"  etc.,  I,  pp.  62  66. 

*  See  below,  §§34,  35,  48  (Kohler).  The  Hegelian  Lassalle  places 
the  following  citation  from  Hegel  as  the  motto  of  his  work  upon 


56  GREEK  CIVILIZATION  [Ch.  II 

istically  by  Spencer  and  Darwin,^  is  founded  upon  a 
denial  of  fixed  points  of  arrest  in  the  natural  world.  If 
carried  to  its  logical  conclusion  —  and  this  applies  to 
the  philosophy  of  law  —  this  position  becomes  pure 
nihilism  (negation). ^  There  are  no  fixed  points  of  arrest, 
but  only  constant  and  endless  evolutionary  series;  not 
a  being  but  only  a  becoming.  Either  the  evolutionary 
position  remains  consistent  and  puts  an  end  to  philoso- 
phy, or  abandons  consistency  at  one  point  or  another,  and 
in  that  case  denies  its  own  validity.  Heraclitus  chooses 
the  second  course.  He  accepts  an  eternal  order  pro- 
tected by  the  Erinyes  against  the  aggressiveness  of 
the  individual.  Between  the  individual  and  the  universal 
there  obtains  a  harmony  by  virtue  of  which  the  individ- 
ual derives  his  vitality  from  the  universal;  and  con- 
versely, by  what  he  yields,  strengthens  the  organic  force 
of  the  whole.  Yet  this  sound  and  vitalizing  thought  is 
quite  positivistic  in  trend,  and  is  opposed  to  the  doc- 
trine of  flux,  'Vaj/Ta  pet";  impiety,  "i5/3pis,"  is  the  vio- 
lation of  this  established  harmony  through  the  aggres- 
sive attitude  of  the  individual,  and  thus  becomes  the 
supreme  offense  ethically  as  well  as  legally.^ 

5:  The  Sophists.^  As  affecting  the  philosophy  of  law, 
subjectivism    reaches    emphatic    and    explicit    develop- 

Heraclitus:  "In  Heraclitus  the  philosophical  idea  first  appears 
in  its  speculative  form.  .  .  .  Here  we  are  upon  safe  ground;  there 
is  no  proposition  of  Heraclitus  that  I  have  not  incorporated  into  my 
logic." 

iSeehoIow,  §§41,  .'■)1. 

2  "Physically,  loj^ically,  and  ethically,  being  has  lost  its  value 
for  Heraclitus."     Lassallc,  "Die  Philosophic,"  clc.  Vol.  II,  pp.  437 

SC(|. 

^ Lassalle,  "Die  Piiiiosophie,"  etc..  Vol.  II  (pp.  427  seq.),  pp.  445 
sef|.      IlildenJnand,  "Cieschichtc,"  etc.,  p.  (iiJ. 

*  Consult  P/rt/o'.v  "Protagoras,"  and  Plato's  "Gorgias."  Hilden- 
brand,  "(beschichte,"  etc.,  I,  pp.  6G-80. 


§13]  GREEKS  BEFORE  PLATO  57 

merit  In  the  Sophists.  They  were  the  exponents  of  the 
intellectuahsm  of  their  day.  Sophistry  is  but  the  reflex 
of  the  spirit  of  transition.  The  belief  in  and  reverence 
for  the  gods,  as  of  the  customs  based  thereupon,  were 
disappearing,  while  the  newer  philosophic  positions  had 
not  yet  matured.  Such  transitional  periods  commonly 
present  the  marks  of  a  dissolution;  they  reveal  a  lack 
of  fundamental  and  reliable  principles  to  support  the 
spiritual  outlook;  all  objective  standards  seem  to  be 
questioned.  This  is  philosophically  formulated  in  the 
fundamental  jwsition  of  Protagoras  (481?-411  B.C.) 
that  "man  is  the  measure  of  all  things."^  The  practical 
man  loses  all  objective  ethical  criteria  to  guide  his  con- 
duct. The  individual  posits  his  own  personality  as  a 
final  purpose,  and  his  personal  advantage  as  the  goal 
of  endeavor.  Each  may  do  as  he  pleases;  might  alone 
prescribes  limitations  and  makes  right.  The  right  of  the 
stronger  prevails.  There  is  no  objective  justice,  but 
right  is  determined  arbitrarily  by  human  enactment." 

6:  The  SocRATic  Philosophy.  The  extreme  subject- 
ivism of  Sophistry  had  replaced  objective  principles  by 
an  eclecticism ;  and  through  such  lack  of  positive  stand- 
ards the  incentive  to  the  practical  appreciation  of  ethi- 
cal factors  was  wanting.  Socrates  (469-399  B.C.) 
found  philosophy  and  ethics  in  a  condition  at  once 
chaotic  and  complacent;  in  this  period  of  decline  he 
appeared  as  the  great  teacher.  By  his  life  and  teachings 
he  pointed  out  a  new  guide  for  conduct,  and  established 

1  Plato,  "Thcstctos,"  p.  152.  "4>r;o-t  yap  ttov,  irävTMV  xpi7/Aarü)i/ 
fxirpov  ävöpwTTov  etvat,  tüJv  [jlIv  ovtwv  ws  €0"Tt,  Tciv  ot  fxr]  uvtwv  ws 
ovK   iCTTiv."     "Diog.  Lacrt.,"  IX,  51. 

^Aristotle,  Sophist,  eleiich.  12.  Callicles  in  Plato,  "Gorgias,"  482. 
Polus  in  Plato,  "Gorgias,"  470.  Thrasyniachus  in  Plato,  "De 
Republica,"  I,  338.  Plato,  "Gorgias,"  pp.  482  seq.  "Thesetetos," 
p.  167.     "De  legib.,"  X,  889. 


58  GREEK    CIVILIZATION  [Ch.  II 

a  path  of  virtue  for  the  masses.  He  was  the  exponent 
of  popular  education,  or,  as  we  have  altered  but  not  im- 
proved the  phrase,  of  social  pedagogics.  This  aspect 
of  the  Socratic  attitude  must  be  clearly  recognized,  for 
it  holds  the  key  to  his  method  as  well  as  to  his  general 
philosophy.  It  accounts  for  the  seemingly  strange  prin- 
ciple of  his  practical  philosophy  that  "virtue  is 
teachable."  ^ 

The  same  supreme  value  which  the  founders  of  religions 
placed  upon  faith,  this  philosophic  reformer  placed 
upon  wisdom,  and  for  a  like  reason:  that  it  may  become 
the  source  and  support  of  life.  The  doctrine  that  virtue 
may  be  taught  is  not  to  be  interpreted  as  an  abstract 
theorem,  but  as  a  practical  postulate;  man  must  learn 
virtue,  and  it  may  be  learned  because  it  is  teachable. 
The  philosopher  makes  his  appeal  to  the  understanding 
and  to  insight,  while  the  founder  of  a  religion  appeals 
to  the  emotions  and  to  faith.  When  the  ethical  command- 
ments of  the  ancient  gods  had  been  destroyed,  Socrates 
proclaimed  new  ones,  but  the  people  had  first  to  be 
taught  to  read  the  new  message.  He  therefore  preached 
to  them  upon  the  text:  "Learn  the  virtue  which  we 
teach  you."  He  replaced  passive  resignation  by  active 
endeavor,  and  substituted  a  consistent  system  for  the 
confusion  of  the  teachings  of  the  Sophists.  According 
to  Socrates,  virtue  is  not  determined  by  the  subjectivism 
of  the  individual.  It  is  true  that  the  ethical  basis  re- 
mains subjective  in  form,  but  the  subjective  consensus 
of  the  community  replaces  individual  judgment. 

'  Xnwphon,  "Mcmorabili.i,"  III,  9,  1:  ""E<^7/ 8e  koX  TrjV  BiKaio- 
avvTjv  Kul  TTjv  äWrjv  ndmiv  dperryi/  (roc^utv  etvat.  Arislotlc:  "lull. 
Niconi»,"  VI,  13:  ""SoKfrnry]';  fxlv  ovv  Aoyoi)?,  ras  a/jtras  loero 
tivuL,  i'm(TTr'ijUL<;  ya/j  o.via  Tra<Ta<;."  "Mavina  Moialia,"  I,  1, 
"(SwK^ttTT^s)  To^  a^jcTas  e7rttrTr//xu?  tVutui."  Aristotle,  "Eth. 
Nicoin.,"  Ill,  11;   VII,  :}. 


§  13]  GREEKS  BEFORE  PLATO  59 

Socrates  could  find  no  available  conception  of  virtue. 
The  religious  positions  had  failed,  and  the  teachings  of 
the  Sophists  had  yielded  no  positive  construction.  So 
he  proceeded  to  establish  virtue  with  reference  to  a  nor- 
mal type,  the  nature  of  which  he  derived  empirically. 
He  followed  the  same  procedure  in  ethics  which  the 
Romans  pursued  in  the  philosophy  of  law.  They  assumed 
a  normal  man,  who  became  the  "bonus"  (or  "diligens") 
"paterfamilias,"  the  Roman  citizen  performing  his  civic 
duties.  Socrates  set  up  the  ethically  normal  man  as  an 
exemplar;  and  such  he  found  in  the  Greek  citizen.  Soc- 
rates could  not  reach  an  absolute  detenni nation  and 
definition  of  the  good.  Its  basis,  as  among  the  Sophists- 
remained  subjective,  but  in  place  of  the  arbitrary  sub- 
jectivity of  the  individual,  there  appears  the  quasi-ob- 
jective judgment  of  all  good  citizens,  exemplified  in  the 
type  of  the  virtuous  citizen.  Self-knowledge  becomes 
the  most  important  instrument  of  personal  education. 
By  comparing  his  own  character  with  that  of  the  normal, 
the  individual  is  to  find  the  incentive  to  overcome  his 
faults  and  shortcomings.  The  laws  of  the  State  deter- 
mine right  action  and  represent  what  is  right.  The  un- 
written and  universal  divine  decrees  determine  morality 
and  lie  beyond  the  sphere  of  law.  He  is  just  who  obeys 
the  laws  of  the  State;  the  virtue  of  justice  is  a  matter 
of  wisdom  —  as  is  all  virtue  — -  and  thus  presupposes 
a  knowledge  of  the  reason  for  obedience  to  the  laws  of 
the  State.  Such  obedience  is  not  to  be  taken  for  granted, 
but  is  the  result  of  reflection.  The  prerequisite  of  all 
government  is  self-government;  the  end  of  government 
is  the  welfare  of  the  citizens;  and  the  best  government 
is  that  by  laws.^ 

^  Xenophon,  "Memorabilia,"  II,  1;  IV,  4,  .5  seq.;  12:  "^r;/i.i  yap 
lyia  TO  vofiivov  hiKaiov  ctvat,"  IV,  15;  IV,  14;  III,  9,  5;  II,  1,  1 
seq.;    Ill,  2,  1  seq.;    IV,  6,  12. 


60  GREEK    CIVILIZATION  [Ch.  II 

§  14.  Plato.  1 :  The  Platonic  Conception  of  Virtue 
AND  Justice.  The  influence  of  Socrates  persisted  after 
his  death;  through  Plato  (429-348  B.  C),  pre-eminent 
among  his  pupils,  his  doctrines  became  the  common 
possession  of  the  intellectual  world.  In  the  philosophy 
of  Plato,  Greek  thought  reached  its  culmination.  He 
stands  as  the  aristocrat  among  the  philosophers  of  ancient 
days,  an  elect  spirit  of  surpassing  greatness.  In  his 
works  Greek  civilization  finds  its  purest  philosophical 
expression.  The  center  of  Greek  culture  was  man,  yet 
not  man  unqualified,  hut  the  noble  man  —-  man  aesthet- 
ically considered.  The  notable  unity  of  Greek  culture 
appears  in  the  selection  of  its  noblest  exemplar  as  the 
central  subject  of  art,  of  philosophy,  and  of  practical 
life.  To  the  Greeks  the  subject  of  art  was  not  man  lit- 
erally and  realistically  represented,  with  spot  and  blem- 
ish, disfigured  l)y  wrinkles  and  lines,  worn  by  the  cares 
and  trials  of  life,  but  man  aesthetically  idealized  —  an 
abstraction  of  his  realistic  counterpart,  man  in  the  form 
he  might  assume  were  he  to  lead  a  godlike  existence. 
Similarly,  philosophy  considered  the  ideal  type  of  a 
moral  man,  not  the  average  man,  imperfect  and 
tainted,  bearing  the  marks  of  a  restless  struggle  for 
existence  and  of  a  life  of  constant  toil.  Morality 
in  the  Cireek  view  of  life  became  equivalent  to 
nobility  of  disposition. 

Unless  this  attitude  be  clearly  grasped,  it  is  impossible 
to  enter  into  the  si:)irit  of  Platonism,  or  sympathetically 
to  understand  and  reproduce  its  deeper  content,  how- 
ever readily  one  may  construe  and  repeat  the  statetnents 
of  Plato's  ethics  or  of  his  social  pliilosophy.  It  would 
have  been  wholly  impossible  for  Plato  to  conceive  of  a 
social  philosophy  devoted  to  the  welfare  of  the  artisan 
class  as  its  central  interest.  Any  such  treatment  would 
have  impressed  him  as  belonging  to  the  crude  unculti- 


§  14]  PLATO  61 

vated  phases  of  human  life,  which  only  the  modern 
drama  has  accepted  as  worthy  of  presentation. 

To  the  elect  of  the  ancient  Greeks  the  central  interest 
of  their  culture  was  the  noble  man.  The  entire  Platonic 
ethics  and  the  social  and  legal  philosophy  derived  there- 
from grew  around  this  conception.  The  noble  man  was 
likewise  the  moral  man.  Morality  is  the  active  virtue 
of  a  refined  character.  Therefore  the  cardinal  virtue 
is  "o-w^poo-vn;,"  which  is  not  to  be  interpreted  as  a 
plebeian  sort  of  prudence,  but  as  the  aristocratic 
virtue  of  a  poised  self-sufficiency.  It  comprises  all  vir- 
tues, moderation  in  all  things  —  the  "aequa  mens"  of 
Horace,^  including,  as  the  prime  virtue,  justice.  But 
virtue  is  not  a  natural  inheritance;  it  must  be  acquired 
through  moral  education,  training  of  character,  and 
strengthening  of  the  will.  Education  in  virtue  is  accom- 
plished primarily  through  the  State;  hence  the  close 
association  of  ethics  and  social  philosophy,  and  hence 
the  characteristic  Greek  view  of  the  effacement  of  the 
individual  in  the  interests  of  the  State. 

From  these  positions  there  follows  the  distinctive 
Platonic  conception  of  the  relation  between  virtue  and 
justice,  and  between  ethics  and  law.  The  foundation 
of  the  practical  life  is  virtue  or  morality,  and  the  basis  of 
philosophical  principles  is  an  ethical  one.  The  vir- 
tuous man  is  equally  the  just  man.  Justice  becomes 
significant  as  a  derivative  of  virtue.  Legal  and  social 
philosophy  is  likewise  based  upon  ethics,  of  which,  in 
turn,  the  philosophy  of  law  is  a  subdivision. 

The  origin  and  development  of  Plato's  ethics  disclose 
its  social  limitations.     It  cannot  become  universal  and 

*  In  the  conception  of  Augustine:  "Ilia  (seil,  virtus),  quae  Graece 
(T(xi<^po(Tvvr)  Latine  temperantia  nominatur,  qua  carnales  frenantur 
libidines,  ne  in  quaeque  flagitia  mentem  consentientem  trahant." 
Augustine,  "De  civitate  Dei,"  lib.  XIX,  c.  4. 


62  GREEK    CIVILIZATION  [Ch.  ii 

embrace  all  mankind,  as  does  the  ethics  of  Christianity; 
for  the  practice  of  Platonic  virtue  is  the  moral  code  of 
the  noble  man,  and  thus  presupposes  a  certain  measure 
of  personal  and  economic  independence.  It  is  a  prerog- 
ative of  the  Greek  citizen,  of  the  nobility  of  the  Greek 
State;  hence  the  contempt  for  manual  labor,  for  accord- 
ing to  the  Greek  view,  common  labor  does  not  ennoble 
but  alienates  man  from  ethical  ideals  and  diminishes  his 
capacity  to  aspire  to  virtue.  Plato  approved  of  slavery 
unreservedly,  finding  it  a  necessary  condition  for  the 
maintenance  of  the  proper  status  of  the  citizen.  The 
presence  of  an  efficient  slave  class  was  necessary  to  the 
economic  welfare  of  the  State,  and  to  the  release  of  the 
citizen  from  manual  and  menial  service.  Thus  in 
the  maritime  and  industrial  states  there  was  a  large 
slave  class;  in  Corinth,  460,000;  in  Aegina,  470,000;  in 
Attica  (according  to  the  census  of  309  B.C.)  400,000.^  It 
was  thus  made  possible  for  the  many  prosperous  citizens 
to  devote  themselves  unrestrictedly  to  art,  science,  and 
culture. 

The  obligation  of  the  individual  to  fulfill  his  highest 
duty  —  the  practice  of  virtue  —  cannot  adequately  be 
met  in  and  through  the  State  alone.  The  State  must 
indeed  retire  to  give  play  to  the  free  spontaneous  activ- 
ities of  its  citizens;  these  do  not  grow  out  of  the  laws 
enacted  by  the  State,  which  secure  the  enforcetnent  of 
rights  and  the  jjreservation  of  liberty.  In  contrast  to 
governmental  regulation,  the  ideal  of  independent  and 
spontaneous  dexelopment  of  the  members  of  the  com- 
monwealth gains  in  significance;  through  this,  ideal 
there  was  eventually  established  a  conception  of 
society  destined  to  overshadow  the  importance  of  the 
State  itself. 

''('lilhrrt,  "I  landluK  li  flcr  t;riecliischon  Staatsaltcrtiimcr,"  I,  pp. 
l(i:5,  2S7  292. 


§  14]  PLATO  63 

2:  Plato's  General  Philosophy.  From  the  considera- 
tion of  Plato's  ethics  and  philosophy  of  law  in  their 
relation  to  Greek  culture,  we  may  turn  to  the  correla- 
tion of  his  ethics  with  his  general  philosophy.  His  ethics 
stand  in  close  connection  with  his  theory  of  knowledge. 
According  to  Plato  ^  the  real  world,  the  absolute,  the 
Kantian  "thing  in  itself,"  is  not  the  world  as  it  appears 
to  our  perceptions.  The  true  essence  of  things  consists 
in  ideas  to  be  apprehended  only  directly  through  their 
phenomenal  reflection.  Ideas  alone  are  real,  eternal, 
and  true.  Man  himself  is  real  only  in  so  far  as  he  be- 
comes the  embodiment  of  the  idea.  The  evolution  of 
mortal  man  from  his  earthly  condition  to  a  higher  plane 
of  existence  is  graphically  and  pointedly  portrayed  in 
the  following  passage  from  Rohde,^  who  describes  it  as 
"a  cleansing,  by  which  the  soul  f rees  ^  itself  from  the 
distortion  attaching  to  its  earthly  life,  and  restores  the 
divine  in  man  in  its  true  light.  Such  purification  makes 
the  true  philosopher  immortal  and  divine  while  yet  on 
earth;*  in  so  far  as  he  is  able  to  move  in  the  realm  of 
rational  knowledge  and  the  understanding  of  the  eternal, 
he  shares  in  the  life  of  the  'isles  of  the  blessed.'^  By 
laying  aside  all   that  is  transient  and  mortal,  he  may 

^  Consult  Vol.  I  of  Berolzheimer,  "System  der  Rechtswissenschaft," 
etc.,  pp.  8-10. 

^  "Psyche,"  second  edition,  Vol.  II,  pp.  285  seq. 

3  "Avetv  T-qv  ^v^rjv,"  of  the  body  ?-nd  of  sensory  perception: 
"Phado,"  S3  A/B;  6.5  A;  67  D,  "Xvai^  koll  KaOapfJos,"  of  the  soul 
through  "4>t\o(ro<f>La";  "Phsedo,"  82  D;  "AvVts  Kat  laais  roiv  Seafxwv,' 
of  the  body,  "/<ai  r^s  a.(j>pocTvv7]<;."     "Rep.,"  7,  51.5  C. 

*  "0etos  eis  TO  SvvaTov  avOpwirw  ytyi/e'rai,"  the  true  philosopher; 
"Rep.,"  6,  500  D.     "äöavaros";    ''Symp.,"  212  A. 

^  "Rep.,"  6,  519  C;  540  B:  "T^s  tov  ovtos  öeas,  oi'av  17801^/^  «x". 
aBvvarov  aXXio."  "Rep.,"  9,582  C  (compare  "Phileb."):  "y£Yevo"ött: 
irXrjv  Tw   cf)Lkoaocf>u)." 


64  GREEK    CIVILIZATION  [Ch.  II 

become  more  and  more  'like  unto  the  gods' ;  ^  and  upon 
the  final  release  of  his  soul  from  earthly  confines,  he 
may  more  and  more  closely  attain  to  the  divine,  the 
unseen,  the  pure,  to  the  condition  of  an  immortal,  incor- 
poreal soul,  forever  to  dwell  with  others  of  his  kind. 
But  language,  limited  to  the  world  of  sense,  becomes 
helpless  to  express  this  state.*  A  spiritual  goal  is  thus 
indicated  that  lies  out  of  relation  to  sense,  or  space,  or 
time,  in  an  eternal  present,  without  past  or  future."^ 

3:  Practical  Justice  and  Social  Virtue.  In  the  deriva- 
tion of  the  idea  and  practice  of  theoretical  justice,  Plato 
shows  his  dependence  upon  Socrates.  Alcibiades,  in  the 
dialogue  bearing  his  name,  recognizes  popular  convic- 
tion, the  collective  sense  of  right,  as  the  source  of  jus- 
tice;* Anytos,  in  the  dialogue  "Meno,"  regards  it  as 
set  by  tradition;^  Protagoras,  in  the  dialogue  "Pro- 
tagoras," views  it  as  a  gift  of  Zeus  conferred  upon  all 
citizens;*  but  Socrates  is  represented  as  holding  that 
only  the  mediation  of  philosophy  and  the  resulting 
knowledge  can  illuminate  the  nature  of  justice.  Upon 
this  is  based  the  strange  opinion  of  Plato  that  the  phil- 
osopher should  govern  the  State/  as  though  theoretical 
insight  and  jjractical  abilit}^  were  always  combined. 

Plato  was  not  content  to  establish  the  principles  of 
justice  theoretically,  but  outlined  their  practical  realiza- 
tion in  the  constitution  of  a  just  State.     He  stood  for 

^  Tlic  lliglit,  "iv9ivBt  iKtL(Te,"  iiulurcs  "o/xotwo'ti'  öew  Kara  to 
SvvaTov."  "  rhoa-tct.,"  17(1  15:  " o/xoiovaOai  öew."  "Rep.,"  10,  ()13 
A  ("tw  KaTnvoovfievu}  to  KaTavvovv  e^o/Motoxrai."     "Tim.,"  90  D). 

-  "Ov  paSiov  SrjXwaai."     "J'luwl.,"  Ill  C 

•^  The  "diSios  ouo^ttt,  to  €0"ti  fxovov  Kara  tov  d\ir]6rj  Xoyov 
irpodriKu."     "Tim.,"  37  \i. 

^  "yXIcihiaflcs,"  I    110  D. 

'"MiMio,"  SI  A. 

»  "Protagoras,"  320. 

»  "Eulhydcmos,"  291  A;   "De  Rcpubl.,"  V,  473. 


§  14]  PLATO  65 

the  true  Greek  culture  as  opposed  to  the  decadent  ten- 
dencies of  his  day.  He  repudiated  the  pohtical  doctrine 
of  the  Sophists  that  "might  makes  right,"  and  recog- 
nized the  need  of  order  and  reasonable  regulation.^  He 
considered  lawlessness  the  greatest  of  evils;  that  the 
just  man  respects  right  and  law;^  that  only  by  recog- 
nizing the  dominion  of  law  does  man  rise  above  the  con- 
dition of  the  animal  creation  and  reach  a  state  of  culture.^ 
He  held  that  the  source  of  law  lies  in  God  and  nature, 
and  its  essence  is  reason,  and  that  the  same  is  true  of 
justice.  Owing  to  the  more  complex  formal  relations 
involved,  justice  is  more  readily  conceived  in  terms  of 
the  community  than  of  the  individual.'*  As  the  just 
service  of  the  individual,  "SiKaioa-vvr]  dvS/aos,"  consists  in 
having  each  spiritual  factor  perform  its  function,  so  the 
just  service  of  the  State,  "SiKaioo-uVr^  TroAews,"  requires 
that  each  class  performs  its  proper  work.  As  the 
Romans  enunciated  the  "suum  cuique  tribuere,"  the 
rendering  to  each  of  his  own,  as  a  principle  of  jus- 
tice, so  Plato  upon  an  ethical  basis  formulated  a  parallel 
duty  of  just  conduct:  "raavToi)  TrpaTTetv,"  every  man  must 
do  his  part.  "Swc^poo-uv»;,"  wisdom  of  action,  which  is  the 
leading  principle  of  virtue,  becomes  as  well  the  criterion 
of  justice  as  a  social  virtue.^ 

4:  The  Ideal  and  the  Real  State.  Plato  set  forth 
two  conceptions  of  the  State:  the  one  as  a  legal  institu- 
tion, arid  the  other  as  an  ideal.  The  ideal  State  is  a 
beautiful  dream  of  the  golden  age  which  might  be  real- 
ized were  the  gods  to  descend  to  earth.     It  represents 

1  "De  Republica,"  I,  351. 

2  "Gorgias,"  470  seq.,  477  seq.,  504  seq. 
'"De  Legibus,"  IV,  716;   IX,  <S74;  X,  889. 

^"De  Republ.,"  II,  368;    "De  Leg.,"  III,  689  B,  702  A;    VIII, 
828  D;    IV,  427  C  seq.,  433  D. 
»"De  Leg.,"  111,696  D,  E. 


66  GREEK  CIVILIZATION  (Ch.  II 

the  imaginative  ideals  of  Plato  the  poet,  and  not  the 
real  conditions  to  be  considered  by  the  constructive 
philosopher.  The  State  as  legally  constituted  is  also 
an  ideal,  but  an  attainable  one,  and  develops  in  response 
to  political  needs.  The  State  as  an  institution  of  social 
betterment  must  strengthen  and  revitalize  the  cultural 
ideals  of  the  people. 

5:  The  Influence  of  Plato.  Plato's  ethics  and  social 
philosophy  brought  the  divine  torch  of  enlightenment 
to  mankind.  Released  from  the  bondage  of  the  old 
religion,  every  man  was  to  find  the  nomi  for  the  develop- 
ment of  his  character  and  conduct  in  himself.  As  the 
einbodiment  of  the  idea,  as  an  emanation  of  the  infinite 
through  his  own  will  and  conduct,  man,  despite  his  frailty, 
may  transcend  his  inferior  self.  In  so  far  as  he  accepts 
the  guidance  of  ^'a-txxfipocrvvrj,"  moderation,  "sequa  mens," 
he  remains  self-possessed,  restrains  his  too  eager  im- 
pulses, his  hasty  resolves,  and  becomes  the  embodiment 
of  the  man  of  justice  performing  his  duty  and  fulfilling 
his  destiny.  These  two  principles  of  Platonic  ethics  — 
''o-ü)<^poo-uv>;,"  as  the  regulating,  restraining,  negating 
principle,  and  "ra  avToO  TrpaTxav,"  the  active  fulfillment 
of  one's  duty  as  the  positive  tenet — -inade  possible 
an  ethics  free  from  a  theological  bias;  and  classical 
ethics,  no  less  than  classical  art,  became  the  model 
and  exemplar  for  remote  gcnerati(Mis. 

In  contrast  to  the  religious  trend  of  the  older  civiliza- 
tions (such  as  the  Egyptian,  the  Jewish,  and  the  early 
Greek),  Plato's  ethics  was  thoroughly  humanitarian. 
The  precepts  of  a  religion  addressed  to  its  votaries  alone 
was  transfomicd  into  a  ])hil()s()phic  appeal  to  all  educated 
men.  Rut  even  the  genius  of  Plato  could  not  transcend 
human  limitations.  In  the  restriction  of  ethical  ideals 
to  llic  i)rivilego(l  citizen,  and  again  in  the  complete  sub- 
jugation of  the  individual  to  the  State,  he  shows  that 


§  15]  ARISTOTLE  67 

he  is  the  product  of  his  age.  Christianity  was  the  first 
to  recognize  and  proclaim  the  universahty  of  ethical 
law;  and  it  remained  for  the  more  advanced  position 
of  later  days  to  establish  the  freedom  of  the  individual 
within  the  State. 

§  15,  Aristotle.  1:  The  Basis  of  Ethical  Conduct. 
Aristotle  (384-320  B.C.)  transferred  Plato's  social  and 
political  teachings  from  the  Utopia  of  the  poet's  imagina- 
tion to  the  prosaic  world  of  daily  life.  His  development 
of  the  Platonic  philosophy  was  not  always  to  its  advan- 
tage; but  his  presentations  have  the  merit  of  clearness 
and  ready  comprehensibility.  The  ethics  of  Aristotle  — 
as  presented  in  the  "Nicomachean  Ethics"  and  the 
"Magna  Moralia" — follows  Socrates  and  Plato,  the 
modifications  being  more  in  form  than  in  substance. 
Aristotle  agrees  with  them  in  making  the  ethical  end 
not  one  of  extraneous  utility,  but  an  independent  absolute 
good  in  itself.  But  while  Socrates  and  Plato  propose 
to  educate  man  through  instruction,  Aristotle  emphasizes 
the  direct  influence  of  motives.  He  sets  forth  that  every 
human  act  is  due  to  a  purpose  which  finds  a  place 
in  a  graded  series.  The  Ji^ighest  or  final  purpose  is  the 
rational  perfection  of  man  through  the  control  of  the 
intellect  over  the  senses.^  The  concomitant  issue  of 
virtue  is  happiness,  "Eudaimonia."  The  virtuous  man 
is  happy,  but  he  does  not  aspire  to  virtue  for  the  sake 
of  happiness.     Happiness  is  the  correlative  ^  of  perfec- 

1  In  the  view  that  all  human  action  has  a  general  purpose,  the 
Aristotelean  ethics  is  psychologically  faulty.  It  is  not  correct  that 
all  human  acts  are  undertaken  as  a  means  to  an  end.  Some  are 
merely  emotional  or  sentimental  expressions,  such  as  hate,  love, 
duty,  with  no  reference  to  purpose;  and  moral  action  is  particularly 
of  this  emotional  and  not  purposeful  order.  See  Berolzheimer, 
"Rechtsphilosophische  Studien,"  Munich  1903,  pp.  143-148. 

^Lasson,  "System,"  etc.,  p.  66.  ""ifvxv^  Ivipytux  kut  apeTyv." 
("Eth.  Nicom.,"  VII.) 


68  GREEK  CIVILIZATION  [Ch.  u 

tion.^  Aristotle,  in  contrast  to  his  predecessors,  holds 
that  knowledge  has  but  slight  influence  upon  character, 
which  finds  its  determination  in  the  will.  The  question 
whether  Aristotle's  freedom  of  the  will  implied  the  mod- 
ern meaning  of  indeterminism  has  until  recently  been 
answered  in  the  affirmative.  In  his  valuable  work  on 
Aristotle,  Loening  has  shown  that  Aristotle  regarded 
the  operation  of  the  will  as  a  definite  psycho-mechani- 
cal process;  yet  the  motives  of  the  will  remain  purely 
psychic  qualities.  "Viewing  man  as  a  whole  one  may 
say  that  he  himself  determines  his  will,  that  he  is  him- 
self the  cause  of  his  will,  but  only  in  the  sense  in  which 
Aristotle  looks  upon  man  as  the  source  of  his  own  con- 
duct and  the  cause  of  his  acts."  ^  In  its  nature  the 
will  is  ethically  neutral;  the  ethical  aspect  appears 
through  the  development  of  character.  Every  man  has 
the  problem  of  transforming  his  natural  character  into 
a  moral  one.  Such  training  of  the  will  is  accomplished 
through  habit  and  through  the  co-operation  of  others. 
The  State  supplies  the  external  medium  and  trains  men 
to  virtue.  Thus  Aristotle  establishes  the  connection 
between  ethics  and  social  philosophy.  The  State  is  an 
institution  for  directing  ethical  aims  towards  the  per- 
fection of  the  individual  while  yet  the  individual  remains 
completely  suljservicnt  to  the  State. 

2:  The  Greek  Aristocrat.  In  the  Greek  view  the 
effacement  of  the  individual  in,  and  in  Viehalf  of  the  State, 
is  not  an  undesirable  issue  but  a  necessary  and  natural 
relation.    The  State  appears  asan  all-embracing  organism, 

'  "i:tli.  Nicom.,"  I. 

2  R.  Loening,  "Geschichte  der  strafrechtlichen  Zurechnungslehre," 
I,  pp.  311,  VM  seq.,  273-318.  Loening  supports  his  expositions  by 
numerous  citations  from  the  works  of  Aristotle.  On  this  point,  too, 
John  Stuart  Mill  judges  in  a  similar  manner  to  Aristotle.  See  below, 
§  28,  and  note  18  in  §  28 


§15]  ARISTOTLE  69 

the  members  of  which  are  individual  men,  quite  as  the 
several  human  organs  serve  to  compose  the  human  or- 
ganism. The  presence  of  a  social  consciousness  in  the 
minds  of  the  people  is  divinely  ordained  and  provided; 
the  law  of  nature  similarly  pervades  and  conditions 
philosophy.  In  the  Aristotelean  conception  the  State 
exists  theoretically  prior  to  its  components,  just  as  the 
whole  exists  prior  to  the  parts.  The  State  exists  by 
virtue  of  natural  law,  and  by  virtue  of  the  same  law  man 
is~ä,  sociäl^t^mg,  who  can  find  his  complete  realization 
only  in  and  through  the  State. ^  This  close  association 
of  the  individual  with  the  State  is  explained  by  the  fact 
that  in  the  ethical  and  social  philosophy  of  the  Greeks 
the  typical  member  of  society  is  the  citizen  of  the  ruling 
class.  Moreover  society  was  compact,  and  emphasized 
the  sense  of  solidarity,  the  community  of  origin  and 
environment,  in  a  manner  not  possible  in  modern  coun- 
tries subject  to  heterogeneous  cultural  conditions 
and  a  shifting  population.  To  appreciate  the  strong 
civic  spirit  of  the  ancient  Greek  citizen  in  his  city-state, 
one  must  have  in  mind  the  status  of  the  select  citizens 
or  aristocracy  in  more  modern  parallels;  such  as  the 
Hanseatic  republics,  or  the  free  imperial  cities  of  Frank- 
furt, Nuremberg,  etc.,  or  the  provincial  sovereignty  in 
Switzerland.  In  these  the  citizens,  inspired  by  an  ardent 
local  loyalty,  rule  and  conduct  the  government.  There 
is  a  strong  solidarity  and  responsiveness  between  the 
individual  and  the  community,  between  the  Republic 

^  "Polit.,"  1,1,9:  "$av€/oov  ort  (f>vau  rj  ttoAis  ivrl  kol  ort  avöpojTros 
(f>v(r€L  ttoXltlkov  ^oiov."  §  11:  "Kat  npörepov  8rj  cfyvaec  ttoAis  ^ 
eKacTTos  rjfjiwv  iarrtv.  To  yap  oAov  vrporepov  avayKaiov  etvai 
Tov  p-ipovs.  AvaLpovp.€vov  yap  tov  oXov  ovk  earai  ttovs  ovo€  x^'P' 
"De  part,  auini.,"  II,  c.  1:  "Ta  yap,  varepa  Trj  ycvecraL  irporepa 
Trjv  <l)v(TLV  icTTL  Kttt  TTpCiTov  TO  Trj  ytviCTU  TeXcvTaXov. 

Compare  with  this  the  pertinent  exposition  by  Jellinek  \\\  '  allge- 
meine Staatslehre,"  pp.  282  seq. 


70  GREEK  CIVILIZATION  [Ch.  II 

and  the  citizen.  A  similarly  constituted  civic  environ- 
ment developed  the  sentiments  and  views  of  Greek  social 
philosophy,  as  reflected  in  the  expressions  of  their  great 
philosophers,  Plato  and  Aristotle.  The  individual  felt 
himself  so  unhampered  as  a  part  of  the  whole,  so  inti- 
mately of  the  community  in  fibre  and  tissue,  that  he 
had  no  occasion  or  inducement  to  desire  a  moral  or  legal 
detachment  from  the  State  or  withdrawal  from  its  liberal 
rule. 

In  considering  the  origin  of  government,  modern  polit- 
ical philosophy  is  fond  of  referring  to  the  Aristotelean 
dictum,  "avöpwTTos  TToXtTLKov  ^wov,"  "mau  is  a  social  being." 
The  "ttoXltlkov  ^üjov"  is  commonly  interpreted  in  the 
sense  of  a  social  being  whose  nature  leads  hiin  to  a 
socialized  life;  but  this  is  misleading.  The  Aristotelean 
political  economy  is  not  applicable  to  large  modern 
countries  but  to  compact  city-states  and  the  civic  spirit 
characteristic  thereof.  Moreover  the  "ttoXitikov"  of 
Aristotle  does  not  refer  to  the  social  nature  of  man,  but 
to  that  quality  by  virtue  of  which  man  reaches  his  full 
cultural  status  only  within  the  State.  At  best  the  asso- 
ciation of  "ttoXitikoV"  and  "^uov"  does  not  express  a  phil- 
osophical principle,  but  a  natural  consequence;  and 
in  turn  not  one  applicable  to  all  circumstances  (including 
the  slaxes),  but  only  to  the  ruling  class  whose  lives  are 
conditioned  materially  and  intellectually  by  the  State. 

3 :  Society  and  the  State.  Aristotle's  \iews  concern- 
ing the  constitution  and  administration  of  government 
are  dcrixed  from  Greek  conditions,  and  stand  in  contrast 
will)  the  modern  treatment  of  legal  problems  in  which 
economic  ciuestions  are  uppeniiost.  In  ancient  Greece 
the  political  aspects  prexailed.  Its  Republics  were  estab- 
lished in  a  thoroughly  aristocratic  spirit;  while  modern 
governments  (monarchies  included),  are  saturated  with 
democratic  tendencies.     The  economic  questions  were 


§  lö]  ARISTOTLE  71 

definitely  settled  for  the  educated  Greek  citizens  by 
the  conservatism  of  societ>'.  They  were  convinced 
that  in  every  society  there  must  be  grades  —  masters 
and  servants,  the  privileged  and  the  unprivileged,  the 
upper  and  the  lower  classes.  The  fully  privileged  citizen 
alone  participated  in  the  exercise  of  government  and 
in  all  public  functions.  In  the  Greek  view  of  life  the 
extreme  emphasis  of  class  distinctions,  the  profound 
contempt  for  the  class  of  artisans  engaged  in  manual 
labor,  and  the  approval  of  slavery,^  are  all  due  to  the 
imperfect  development  of  ethical  ideas,  which  in  pre- 
Christian  times  had  not  yet  attained  a  general  human- 
itarian application.  But  these  harsh  and  severe  views 
were  due,  for  the  most  part,  to  the  attitude  and  privi- 
leged position  of  the  Greek  citizen.  In  other  respects 
Aristotle  showed,  as  Plato  had  done  before  him,  an 
adequate  economic  judgment  -  in  his  approval  of  private 
ownership,  in  his  recognition  of  class  interests,  in  his 
appreciation  of  the  prosperous  citizen  as  representing 
the  sinews  of  the  State. ^ 

The  economic  situation  was  secure,  but  on  the  politi- 
cal side  the  Greek  citizen  was  exposed  to  dangers.  The 
menace  to  the  welfare  of  the  Greek  State  was  not  the 
problem  of  bread,  but  of  political  ambition  —  tyranny; 
the  prevention  of  tyranny  was  to  Aristotle  the  chief 
problem  of  statesmanship. 

^  "Polit.,"  Ill,  1,  4:  "Mtrexuv  Kptcrtw^  koi  apx^'."  I.  13;  III,  5; 
IV.  11;  I,  chaps.  3-7.  Also  ///7(i('«ftrü»£?,  "Geschichte,"  etc.,  pp.  395- 
406;  Wallon,  "Histoire  d'esclavage  dans  I'antiquite,"  pp.  371-393. 
According  to  Aristotle  slavery  is  just  when  it  arises  from  so  marked  a 
difference  between  master  and  slave  that  the  former  appears  as  the 
regulating  will  and  the  latter  as  the  material  instrument;  for  then 
it  is  justified  by  nature. 

2  "Polit.,"  11,2-7;   IV,  11. 

^  On  Aristotle's  position  as  reflecting  Greek  culture,  see  "Polit.," 
I,  4.  7. 


72  GREEK  CIVILIZATION  [Ch.  II 

According  to  Aristotle  there  are  three  legitimate  con- 
stitutional forms  of  government  suitable  to  varying  con- 
ditions: Monarchy,  Aristocracy,  and  Polity;  and  three 
tyrannical  kinds  of  government:  Tyranny,  Oligarchy, 
and  Democracy.^  The  equitable  government  is  that 
according  to  laws  which  limit  the  power  of  the  governing; 
for  the  State  is  founded  upon  justice,  and  justice  is  its 
essence.  Only  on  the  basis  of  justice  does  the  State  ful- 
fill its  noble  purpose,  its  ethical  mission  of  fostering  the 
perfection  of  its  citizens.-  The  State  must  be  founded 
upon  right  and  not  upon  arbitrary  power;  law  must  pre- 
vail and  the  ruler  but  supplement  the  law  wherever  the 
latter  fails  to  provide.  By  such  measures  the  moral 
purpose  of  the  State  is  attained :  "to  ^^v  cvSat/Aovws  Kat  KaXws," 
"a  happy  and   beautiful   life."^ 

4:  Justice  and  Equity.  Plato  is  the  acknowledged 
master  exponent  of  ethical  principles;  the  leadership 
of  Aristotle  appears  in  his  immortal  masterpiece  —  the 
treatise  on  Justice.  The  Aristotelean  principle  that 
justice  is  equality  is  reached  through  the  conception  of 
virtue.  As  all  virtue  consists  in  moderation,  so  justice 
consists  in  the  avoidance  of  too  much  or  too  little;  the 
just  is  the  equal.  The  equality  of  justice  is  partly  an 
absolute  direct  equality,  partly  a  relative  equality. 
Absolute  equality  is  expressed  in  the  adjustments  of  pri- 
vate law  as  fairness,  equity  —  a  justice  that  compensates, 
offsets,  or  equalizes,  "StKaiov  SiopöwriKoi/."  Relative 
equality  appears  in  a  distributive  justice,  in  the  distri- 
butifm  of  goods,  "StKuiov  Siave/AT^n/cdv,"  according  to  the 
princi])le  of  relative  standards;    in  the  retribution  which 

»  "PoHt.,"  Ill,  0,  0;  IV,  4,  8,  11.     "Elli.  Nicom.,"  VIII,  12. 

2  "Polk.,"  Ill,  17;  V,  r)-10;  I,  2;  I,  1  seq.;  111,9,10;  VII,  8. 
Also  "Kth.  Nicom.,"  Ill,  1,7;  11,2;  X,  10. 

'According  to  "Polit.,"  Ill,  5,  V.i,  tlic  State  is  "rjTovtv  ^rjv  kou'w- 
vta." 


§  151  ARISTOTLE  73 

the  offender  must  make  for  his  crime,  as  determined, 
not  by  an  absolute  standard  of  equality  (thus  opposing 
the  principle  of  literal  retaliation),  but  by  the  degree  of 
guilt.  The  formula  of  absolute  justice  reads: — To  every 
man  let  there  be  accorded  the  same;  that  of  relative 
justice;  to  those  on  a  par,  let  there  be  a  parity  of  treat- 
ment, but  for  those  unlike  in  circumstance  there  shall 
be  unlike  treatment,  according  to  merit  and  service, 
according  to  worth  or  guilt. 

Where  formal  justice  would  work  material  injustice, 
it  must  be  supplemented  by  equity.  The  equitable  is 
"eVtetKe's,"  the  just,  which  deviates  from  mere  legality 
by  becoming  a  corrective  thereof  through  the  media- 
tion of  standards  resulting  from  the  conception  of 
justice.  For  while  justice  is  of  natural  origin,  law  is 
due  to  enactment;  it  is  changeable,  and  if  defective, 
may  be  improved.  Legal  prescription,  "vo/xivov,"  and 
material  justice,  as  alike  issues  of  ethical  precepts,  should 
indeed  coincide;  but  in  reality,  in  any  actual  and 
imperfect  legislation,  they  are  likely  to  diverge.  Where 
the  provisions  of  the  law,  which  must  be  general  and 
adjusted  to  ordinary  circumstances,  "to  w?  eVt  to  TrAeW," 
would  result  in  an  injustice,  owing  to  the  special  circum- 
stances of  a  particular  case,  the  law  is  to  be  supplemented 
by  equity,    "iTrav6p6o)ixa. ' '  ^ 

5:  The  Origin  of  Civic  Life.  Less  distinctive  are 
Aristotle's  views  of  the  evolution  of  the  State  and  law; 
in  them  he  substantially  followed  the  Greek  conception 
that  life  in  cities  was  preceded  by  that  of  the  village 
community.  He  derived  the  city  or  "polls"  from  a  col- 
lection of  villages,  "kw/xt/,"-  which  in  turn  grew  out 
of  the   individual   house,    "oIkux"   or  homestead.      The 

1  "Eth.  Nicom.,"  V,  2,  10;  14;  1-3,  5,  9,  13.  "Rhetor.,"  I,  10; 
13, 15. 

*"Pol.,"  I,  1.    Leist,  "Altarisches  jus  gentium,"  pp.  24-31. 


74  GREEK  CIVILIZATION  [Ch.  II 

salient  point  in  this  development,  however,  he  over 
looked ;  for  while  the  formation  and  extension  of  human 
groups  is  explained  by  the  socializing  spirit,  the  latter 
does  not  account  for  the  origin  of  the  State,  or  of  com- 
munal right  and  government.  According  to  Aristotle, 
law,  like  the  State  itself,  is  a  product  of  the  rational 
nature  of  man.^  In  this  he  likewise  followed  the  Greek 
view  which  made  human  nature  the  central  interest  in 
art,  as  well  as  in  philosophy.  Human  nature,  quite 
too  commonly  held  responsible  for  all  sorts  of  qualities 
and  conditions,  can  at  best  account  for  the  social  nature 
of  customs,  but  hardly  for  the  existence  of  the  State 
and  the  evolution  of  law.^ 

§16.  The  Post-Aristotelean  Period.  1:  The  Cynics. 
After  Aristotle  there  ensued  a  period  of  decline  in  social 
and  legal  philosophy.  Beginning  with  Antisthenes 
(b.  444  B.  C.)  a  disciple  of  Gorgias,  later  a  disciple  and 
friend  of  Socrates,  the  Cynics  make  the  virtue  of  the 
wise  consist  in  the  freedom  from  needs.  They  advocate 
a  return  to  nature;  they  repudiate  the  results  of  civiliza- 
tion, such  as  government,  marriage,  property.  In  this 
reactionary  attitude  they  antici])ate  the  position  of 
Rousseau  or  Tolstoi.  Their  merit  lies  in  fostering  the 
spiritual  development  of  the  less  fortunate  classes,  who, 
in  these  views,  found  a  phikjsophical  consolation  for 
their  fate. 

»  "Elh.  Nicom.,"  VIII,  III,  15, 16;  V,  10;  X,  10,  "Pol.,"  I,  III,  6- 
This  view  of  Aristotle  became  decisive  for  the  philosophy  of  law  and 
has  been  reinstated,  though  in  my  view  falsely,  particularly  in  modern 
times  since  the  days  of  Grotius.  See  Berolzheimer,  "Rechtsphiloso- 
phische Studien,"  pp.  149-l.'il. 

^  Sec  Stammler,  "Wir(schafl  und  Rfclu,"  ]).  ^^',^^^^,  also  B.'rolz- 
heimer,  "Rcchtsphil.,"  clc,  pp.  If)!)  l.Ti.  Kven  if  the  Aristotclcan 
explanation  were  corrcrl,  it  would  be  merely  causal  and  not  philo- 
sophical. The  orij^in  nf  a  pliciionuiioii  does  not  of  itself  jjrovide  its 
meaning  and  justification. 


§  15]  POST-ARISTOTELEAN   PERIOD  75 

2:  The  Cyrenaics.  Prominent  among  the  Cyrenaics 
is  Aristippus  (b.  about  435  B.C.),  who  followed  the 
teachings  of  the  Sophists  in  favoring  a  hedonistic  basis 
for  conduct,  and  in  holding  that  justice  is  the  result  not 
of  nature  but  of  enactment.^  Another  Cyrenaic,  Theo- 
DORUS,  carried  this  view  to  the  extreme.  He  held  that 
circumstances  might  justify  the  wise  man  in  disregarding 
artificial  statutes,  and  in  committing  theft,  adultery, 
or   sacrilege.^ 

3:  The  Stoics.  The  Stoic  school  (founded  by  Zeno 
about  310  B.C.)  was  an  outgrowth  of  the  Cynic  school, 
and  had  an  important  influence  upon  the  Roman  philoso- 
phy of  law.  The  Stoic  ethics  proclaims  the  principle  of 
natural  living  —  of  a  life  in  harmony  with  the  rational 
laws  of  nature.  Such  a  life  is  in  accord  with  reason  and 
thereby  with  virtue.  The  Stoic  sage  is  characterized  by 
"aTapa^ia,"  a  Condition  beyond  the  influence  of  fear 
and  hope.  He  is  the  embodiment  of  "an  individual- 
istic self-sufficiency,"^  standing  for  himself  and  by  him- 
self; he  holds  himself  aloof  from  desire  and  action.  If 
consistently  applied,  the  Stoic  principle  would  result  in 
the  paralysis  and  stagnation  of  economic  life.  The  mon- 
istic position  of  the  Stoics  —  meaning  by  this  term  their 
conception  of  the  unity  of  law  and  natural  reason  — 
culminated  in  the  social  conception  of  cosmopolitanism. 
The  Stoic  ideal  is  a  universal  State.  In  its  analysis  of 
justice  the  Stoic  philosophy  holds  that  it  is  based  not 
upon  enactment  but  upon  nature.  The  older  formula- 
tion of  the  contrast  of  "^uW  StKatov"  and  "vo/xw  StWoi/" 
is  modified  by  the  Stoics,  for  whom  "vo/tos"  is  equiva- 
lent to  the  rational  law  of  the  natural  world,  and  who 

^  "Diog.  Laert.,"  II,  93:    "Mr^SeV  re  erva6  (jbi'crei  SiKaiov  rj  kuXov  rf 
al(T)(p6v  dAAa  vo/xw  Koi  eOet." 
2  "Diog.  Laert.,"  II,  99. 
'  Hildenbrand,  "Geschichte,"  etc..  p.  507. 


76  GREEK  CIVILIZATION  [Ch.  II 

thus  contrast  "(jtvaei  StKaiov"  with  ''Oecrei  StWov."  ^  The 
"^vau  StKatov"  of  the  Stoics  is  not  a  principle  of  constituted 
law,  but  natural  law  as  applied  to  life  in  its  legal  aspects. 

4:  The  Epicureans.  Epicurus  (341-270  B.C.)  taught 
the  doctrine  of  the  State  contract.  While  Aristotle 
regarded  men  as  members  of  an  inclusive  group,  and 
derived  the  State  from  the  afhliation  of  the  several 
groups,  Epicurus  held  that  all  men  were  originally 
individualistic  and  independent.  The  community  thus 
arose  not  by  a  process  of  nature  but  by  enactment,  by 
voluntary  association  and  contract.  The  purposes 
sought  in  such  association,  particularly  the  need  of  pro- 
tection, formed  the  motive  force  inducing  individuals 
to  combine.  Government  and  law  were  comprehensive 
contracts  in  the  interest  of  security.  Utility  was  the 
principle  of  human  conduct,  and  happiness  was  its  goal. 
Law  became  inefficient  as  soon  as  it  no  longer  worked 
to  ad  vantage. 2 

This  simple  doctrine  seems  to  illustrate  the  tendency 
for  periods  of  philosophical  decline  to  favor  systems 
based  upon  an  individual  or  social  utilitarianism:  wit- 
ness Hobbes,  Bentham,  Ihering.  The  exponents  of 
such  views  overlook  the  inconsistency  of  their  psy- 
chology with  history.  Historically  it  is  not  the  case  that 
men  federated  by  contract:  and  psychologically,  man 
is  not  a  coldly  calculating  machine  regulated  by  utility, 
but  an  emotionally  responsive  being.  Utilitarianism 
fails  to  account  for  government  or  law,  not  alone  by 
reason   of   the   many   residual   ])henomena   that   refuse 

'  "Plutarch  dc  Stoicorum  repugnant ihus"  {Ylepil  SrwiKtuv  eVavTiaj- 
fidrwv) . 

9.  "Diog.  Lacrt."  VII,  12S;  "to  Slkulov  (ftaai  </)tJ(ret  ui'ai  kol  fxr] 
Biait." 

^  "Diog.  Laert.,"  X,  150.  Compare  with  tliis  "Diog.  Laert.,"  X, 
118;  "l'2picuriis,"  ku /jiui  So^ct,  :jl-U;i;  "Cicero  de  finibus,"  1, 13,  16. 


§  15]         POST-AR  I STOTELEAN   PERIOD  77 

to  tally  with  this  view,  but  because  of  the  inlierent  diffi- 
culty of  reaching  an  acceptable  definition  of  utility.^ 

5:  The  Sceptics.  The  Sceptics  fell  back  upon  the 
fallacies  of  the  Sophists;  their  position  was  that  of  a 
rational  resignation.  They  denied  the  existence  of  an 
inherent  justice  and  based  their  denial  mainly  upon 
the  evidence  of  the  conflicting  conceptions  of  law  in 
different  times  and  lands.  From  this  they  inferred  the 
impossibility  of  a  universal  basis  of  right  action.^  Timon 
(about  325-about  235  B.C.)  maintained  that  in  reality 
there  is  neither  justice  nor  injustice  and  that  men 
judge  merely  according  to  custom  and  tradition,  "vofiw 
8k  KOL  £Öet."  Carneades  (214-129  B.C.)  reasserted  the 
doctrine  that  right  is  tlie  expression  of  the  power  of 
the  stronger.  To  deal  justly  is  in  his  view  to  sacri- 
fice personal  advantage  to  an  imaginary  ideal.  Obedi- 
ence to  the  law  of  the  State  is  based  not  upon  a  sense  of 
justice  but  upon  a  shrewd  policy  that  considers  its  own 
advantage. 

6  The  Neo-Platonists.  The  Neo-Platonists  were  the 
last  representatives  of  Greek  philosophy.  Their  philoso- 
phy was  essentially  mystic,  and  held  that  by  withdrawal 
from  the  world  of  sense,  men  may  come  to  know  the 
divine  upon  earth  through  the  understanding.  The 
extreme  transcendentalism  of  the  Neo-Platonists,  reject- 
ing everything  earthly,  removes  them  from  the  field  of 
social  and  legal  philosophy.  Their  most  notable  rep- 
resentative was  Plotinus,  the  Ascetic  (204-269  A.D.).^ 

^BerokJmmer,  "Die  Entgeltung  im  Strafrechte,"  Munich  1903, 
pp.  ISO  seq.  and  "Rechtsphil.,"  etc.,  p.  147. 

^Zeller,  "Die  Philosophie  der  Griechen,"  Part  3,  Division  2,  fourth 
edition,  pp.  1-81.  Scepticism  likewise  has  found  a  disciple  in 
modern  times,  namely,  Montaigne.  See  Rossbach,  "Die  Perioden 
der  Rechtsphilosophie,"  p.  45. 

'Upon  Plotinus  see  Zeller,  "Die  Philosophie,"  etc.,  pp.  500-734, 
520-685. 


78  THE  CIVIC  EMPIRE  [Ch.  hi 


CHAPTER  III 

THE  CIVIC  EMPIRE  OF  ANCIENT  ROME  AND 
THE   MORALIZATION   OF   ROMAN   LAW 

THE  ROMAN  PEASANT  STATE;  THE  "JUS  CIVILE":  (1)  SUBJECTIVE 
RIGHT,  ABSENCE  OF  ETHICAL  FACTORS;  (2)  THE  "PATERFAMILIAS" 
AS  THE  CENTER  OF  ROMAN  LAW.— THE  ROMAN-ITALIAN  STATE: 
THE  REJUVENATION  OF  LAW  THROUGH  "AEQUITAS."— THE  ROMAN 
EMPIRE:  INTRODUCTION  OF  THE  PHILOSOPHY  OF  LAW  THROUGH 
CICERO.— THE  DECLINE  OF  THE  ANCIENT  EMPIRE:  CHRISTIAN 
ETHICS. 

§  17.  The  Roman  Peasant  State:  the  "Jus  Civile.'" 
1:  Rights:  Absence  of  Ethical  Factors.  The  origin 
of  the  Roman  Empire  may  be  traced  to  the  Roman 
peasant  state.  The  life  of  the  tiller  of  the  soil  was 
sturdy  and  rigorous,  and  his  laws  were  of  like  tenor, — 
austere,  rigid,  and  unyielding,  severe  in  their  provisions, 
and  oppressive  towards  those  falling  under  their  author- 
ity. In  the  early  stages  of  the  development  of  law  an 
explicit  philosophy  is  lacking;  hence  the  histories  of 
the  philosophy  of  law  make  slight  mention  of  the  early 
Roman  period,  which  is  characterized  by  the  codification 
of  the  Twelve  Tables  (451-449  B.C.).  But  the  character 
of  the  laws  themselves  inevitably  reflects  a  philosopliical 
conviction;  and  ancient  Roman  cixil  law  is  philo- 
s(jphically  inslructive  by  reason  of  its  contrast  to  other 
pcri(Kls  and  lo  our  own  atlitndcs.  Sncli  contrast  serve.« 
to  set  in  relici  tlic  progressive  sjjirit;  of  law  and  its  his- 
torical development. 


§  17 1  ROMAN  PEASANT  STATE  79 

The  distinctive  mark  of  Roman  law,  as  contrasted  with 
later  codes,  lies  in  the  complete  absence  of  an  ethical 
element;  it  illustrates  the  course  of  law  antecedent  to 
its  association  with  ethics.  By  contrast  it  permits  the 
modern  student  to  realize  the  large  dependence  of  legal 
principles  upon  ethical  ones.  Its  advantage  for  such 
illustration  lies  in  its  thorough  legal  elaboration,  its 
accredited  standing,  and,  as  noted,  its  freedom  from  the 
intrusion  of  ethical  influences.  An  essential  principle  of 
law  not  yet  permeated  by  the  ethical  idea,  that  is  non- 
ethical  or  ethically  indifferent,  is  the  unconditionality  or 
restrictedness  of  rights.  Such  apparently  obvious  posi- 
tions as  that  all  rights  involve  a  corresponding  duty, 
and  that  there  are  no  rights  without  legal  restrictions, 
do  not  appear  in  the  non-ethical  periods  of  law;  they 
are  of  ethical  origin  and  the  product  of  constructive 
ethics. 

The  absolutism  of  early  Roman  civil  law  appears 
throughout.  The  owner  of  the  farm,  the  "paterfamilias," 
is  absolute  monarch  in  the  domain  of  private  law.  He 
lords  it  over  his  possessions,  and  the  "familia"  is  un- 
conditionally subject  to  his  control.  To  him  belong 
"personse  in  mancipio,"  "uxor  in  manu,"  "filii"  and 
"filial  familias,"  over  whom  he  exercises  the  "jus  vitse 
ac  necis";  and  again  the  "res  mancipi,"  with  which  he 
may  deal  and  dispose  according  to  his  pleasure.  Prop- 
erty is  not  restricted  by  social  considerations.  There 
is  no  formulated  law  of  the  family  — •  which  is  ever  the 
issue  of  ethical  factors — -but  only  an  undefined  pre- 
rogative of  the  head  of  the  household.  Equally  abso- 
lute is  the  law  of  indebtedness;  the  debtor  who  falls 
in  arrears  assumes  an  unconditional  liability  ("nexum"), 
even   to   the  forfeiture  of  liberty  and  life.^    There  is 

»XII,  tab.  111,1-4;  6. 


80  THE  CIVIC   EMPIRE  [Ch.  Ill 

likewise  no  law  of  inheritance  ^  in  the  modern  sense. 
The  "familia"  continues  in  unbroken  succession,  the 
aggregate  property  and  rights  of  the  deceased  pass  on 
as  a  whole,  and  there  are  no  personal  claims  of  the 
individual  members  of  the  family. 

The  non-ethical  character  of  Roman  civil  law  appears 
likewise  in  the  constitution  of  the  family,  which  is  not 
determined  by  the  ethical  concept  of  a  natural  relation- 
ship, but  is  conceived  from  the  legal  point  of  view  that 
only  juristically  relevant  facts  establish  or  dissolve  it. 
Hence  the  restriction  of  kinship  to  the  agnates,  and  hence 
the  possibility  of  an  artificial  kinship  through  "arroga- 
tion,"  as  well  as  of  dissolution  of  kinship  through 
juristic  acts. 

The  legal  principles  of  early  Roman  law  are  in  general 
terms;  they  take  no  consideration  of  the  particular 
circumstances  of  a  case,  and  provide  for  no  concession 
in  view  thereof. 

2:  The  "Paterfamilias"  as  the  Center  of  Roman 
Law.  To  speak  of  early  Roman  law  as  non-ethical 
describes  it  negatively,  as  unaffected  by  ethical  considera- 
tions, as  purely  legal.  Yet  it  presents  a  positive  side. 
It  was  rigorous;  it  regulated  the  life  of  the  Roman  citi- 
zen in  the  interests  of  the  conservation  of  vigor.  The 
early  Romans  were  a  yeomanry,  and  their  laws  were 
designed  to  support  the  yeomanry  in  undiminished 
vigor.  The  ancient  Ary^in  householder,  as  the  center 
of  domestic  life,  was  the  upholder  of  a  cult  and  of  the 
ethical  relations  to  which  it  gave  rise.  In  contrast,  the 
Roman  view  of  the  head  of  the  family  was  primai'ily  a 
legal  one.  He  represented  the  center  of  private  individ- 
ual autJKjrity.     The  early  Roman  State  was  built  ujjon 

»  L.  G2  D.  (Ic  R.  J.  .W,  17;  L.  24  D.  dc  V.  S.  50,  16;  L.  37  D.  de 
adqu.  her.  2'J,  2. 


§17]  ROMAN   PEASANT  STATE  81 

the  "familia"  as  the  artificial  unit  of  authority;  its 
foundation  was  not  the  individual,  but  the 
"famiha"  represented  by  the  "paterfamihas" ;  to 
him  all  legislation  was  directed  and  from  him  it 
emanated. 

The  status  of  the  "paterfamilias"  was  important  for 
constructive  legal  development.  Law  secured  order, 
and  order  furthered  efhciency.  The  fundamental  neces- 
sity of  order  in  human  life  led  to  the  search  for  a  regu- 
lative principle;  and  this  the  Romans  found  in  and 
through  the  central  position  occupied  by  the  "bonus, 
diligens  paterfamilias,"  the  ideal  type  of  the  Roman 
citizen.  The  "paterfamilias"  was  the  point  of  con- 
centration of  the  legal  provisions,  the  nucleus  from 
which  emanated  the  several  divisions  of  the  law. 
By  setting  the  question,  "How  shall  the  ideal 
Roman  citizen  think  and  act?"  the  basis  for  the 
development  of  law  and  legislation  was  attained. 
The  model  Roman  citizen  furnished  the  constructive 
basis  of  law. 

The  power  and  authority  of  law  as  embodied  in  laws, 
and  especially  as  realized  in  personal  prerogative,  was 
clearly  present  to  the  Roman  mind.  This  may  be  in- 
ferred from  the  evidence  —  in  part  accredited  as  histori- 
cal and  in  part  circumstantial  —  that  in  the  primitive 
Roman  conception  of  law  the  acquisition  of  personal 
rights  was  not  a  matter  of  arbitrary  assumption,  but 
was  established,  either  by  means  of  a  mutual  agreement 
or  contract,  or  by  a  unilateral  act  such  as  a  testamentary 
disposition.  Consequently  in  the  olden  times  private 
claims  could  be  established  only  under  the  same  condi- 
tions as  validated  law,  namely,  by  consent  of  the  popular 
assembly.  Vestiges  of  this  original  form  of  the  sub- 
jective or  personal  right  are  to  be  found  in  the  ancient 
Roman  ceremonial  of  calling  to  witness  —  a  requirement 


82  THE  CIVIC   EMPIRE  [Ch.  Ill 

not  easily  accounted  for  on  any  other  ground.^  The 
underlying  idea  is  that  the  collective  interests  of  the 
State  suffer  through  the  litigation  of  private  individuals, 
which  accordingly  require  the  consent  of  the  community. 
In  more  developed  and  established  communities  such 
litigation  but  slightly  affects  the  welfare  of  the  State; 
and  the  consent  thereto  became  a  notification  through 
the  popular  assembly,  and  was  ultimately  reduced 
to  the  merely  formal  presence  of  witnesses,  who  stand 
as  the  survival  of  the  assembly  of  the  people. 

§18.  The  Roman-Italian  State:  the  Rejuvenation  of 
Law  through  "j^qiiitas.'"  In  temper  the  Greeks  were 
artistic  and  philosophical,  the  Romans  practical  and 
constructive.  The  legal  system  of  the  Romans  furnishes 
a  brilliant  example  of  unerring  practical  insight  and 
notable  constructive  talent.  The  common  opinion  that 
the  Romans  contributed  little  to  the  philosophy  of  law 
is  erroneous,  and  may  be  due  to  the  exclusive  considera- 
tion of  Roman  works  upon  legal  philosophy.  These, 
it  is  true,  do  not  present  any  markedly  original  ideas; 
philosophizing  was  not  a  strong  point  with  the  Romans. 
Yet  the  contributions  of  their  legal  authorities  should 
not  be  considered  to  the  exclusion  of  the  evidence  sup- 
plied by  the  law  itself;  the  true  spirit  of  Roman  philoso- 
phy and  culture  is  reflected  in  the  monument  which 
Roman  civilization  has  erected  in  the  system  of  Roman 
law.  Tlie  Romans  contributed  a  classic  and  enduring 
nKxk'l  for  the  philosophy  of  law,  quite  as  clearly  as  the 
Creeks  supi)lied  the  prototype  of  ethical  views.  The 
two  s])ecial  contributions  due  to  Roman  legislation  and 
])ractice  are,  in  the  first  ])eriod,  the  establishment  of  the 
"bonus  (diligens)  ]iaterfamilias"  as  the  standard  relation 

'  A  mori'dclailc'd  cxijosition  is  found  in  ßn-dlzliciinrr,  "Rcchtsphil.," 
etc.,  i)|).  19-2;}.  IScc  Maitir,  "Ancient  Law,"  London  190!),  on  tiie 
Calatary  will  in  Koman  law,  p.  210.  —  Editor's  Note.] 


§18]  ROMAN-ITALIAN  STATE  83 

for  the  development  of  private  and  criminal  law;  and, 
in  the  second  period,  the  "jus  a?quum,"  as  embodying 
law  conformably  to  the  principle  of  equity. 

The  principle  of  "aequitas"  was  expressed  in  the  words: 
"summum  jus  summa  injuria."  Aristotle  had  already 
found  that  the  stern  conception  of  legal  right  must 
yield  to  considerations  of  equity.  In  Roman  law  such 
concessions  were  extended;  and  the  older  rigid  legisla- 
tion was  encroached  upon  by  the  spirit  of  "aequitas." 
The  Roman  yeoman  right  became  a  law  of  universal 
scope;  the  foundations  of  this  development  were  laid 
in  the  Roman-Italian  period. 

The  renaissance  of  Roman  law  was  accomplished 
practically  by  means  of  the  praetorian  edict,  and  theo- 
retically through  the  philosophical  principle  of  "Ratio," 
("ratum").^  It  meant  to  the  Romans  what  the  Egyp- 
tians figured  as  "Ra,"  natural  energy  deified,  or  the 
ancient  Aryans  as  "Rita,"  the  regulative  principle  of 
the  world  and  nature.-  "Ratio"  is  not  identical  with 
the  spirit  of  national  law;  for  the  latter  is  variously 
influenced  by  local  and  personal  relations,  by  economic 
conditions,  and  by  historical  events.  For  this  reason 
the  Roman  jurists  speak  of  "ratio"  in  the  sense  of  the 
Aryan  "rita"  as  "naturalis  ratio";  side  by  side  therewith 
was  the  national  Roman  law  reflecting  its  popular 
origin  ^  as  "civilis  ratio."  Thus  to  the  Romans  "natura- 
lis ratio"  was  not  equivalent  to  the  sum  total  of  the 
sentiments  and  consciousness  of  right  action  common 

^  See  the  bibliography  noted  by  Leist,  "Graeco-ital.,"  etc.,  p.  199, 
note  a,  and  p.  221,  note  f. 

2  See  the  confirmatory  passages  noted  by  Leist,  "Graeco-ital.," 
etc.,  p.  199.  Note  particularly  Cicero,  "De  natura  Deorum,"  2, 
16,  20,  37:  "Tusculanarum  disputationum  libri  quinque,"  5,  24; 
In  Verrem  2,  2,  52;   Seneca,  epist.,  66;   see  also  below,  §  19. 

^ Leist,  "Grseco-ital.,"  etc.,  p.  609. 


84  THE  CIVIC   EMPIRE  [Ch.  Ill 

to  all  men,  but  signified  the  objective  and  external 
order  of  nature.^  Yet  such  order  must  serve  as  the  basis 
of  just  laws;  and,  following  the  Stoic  argument,  the 
legal  construction  based  upon  "ratio"  becomes  the 
artificial  counterpart  of  the  cosmic  order. 

The  practical  operation  of  "sequitas"  belongs  to  the 
history  of  law.  As  to  its  conception  and  nature  three 
views  may  be  noted.  The  older  view  is  that  the  quality 
of  equity  consists  in  the  detailed  consideration  of  the 
individual  circumstances  of  a  concrete  case.  Yet  this 
most  common  application  of  "sequitas"  does  not  ade- 
quately^ suggest  its  sphere  of  operation  or  its  nature. 
For  instance,  it  is  due  to  the  conception  of  "sequitas" 
that  the  principle  of  the  "cognate"  (maternal)  relationship 
was  established  alongside  and  eventually  in  place  of  the 
"agnate"  (paternal)  relationship  and  succession.  This 
may  not  be  historically  verifiable  because  the  "sequitas" 
as  applied  to  inheritance  was  not  formulated  as  a  legal 
institution  but  prevailed  as  a  prsetorian  "bonorum 
possessio." 

The  view  rei)resented  by  Voigt  is  that  the  principle 
of  equity  would  apply  to  new  laws  and  legal  regulations 
so  long  as  these  represent  merely  the  positions  of  their 
pro])osers  and  have  not  yet  become  a  constituent  part 
of  formuUited  law.  In  this  sense  "sequitas"  in  each 
period  would  be  the  most  ])rogressive  expression  of  a 
develoj)ing  legal  consciousness.  There  would  be  sev- 
eral varieties  thereof:  a  popular  "icquitas,"  rej^resenting 
the  demands  growing  out  of  ihc  development  of  such 
consciousness  in  the  ])Co])le,  and  a  scientific  "iequitas," 
corresponding  to  similar  demsmds  due  to  the  develop- 
ment of  concejotions  among  scholars  and  legal  j^racti- 
tioners.     The  dislinclion   niiglit  also  be  made  between 

^Leisl,  "Gra;co-ital.,"  etc.,  pj).  GGl-üüS.  (Opposed  to  Savigny, 
and  in  later  days  to  Bernhöfl.) 


§  18]  ROMAN- ITALIAN  STATE  85 

general  and  special  "aequitas,"  according  as  it  was 
applied  to  the  entire  field,  or  pertained  only  to  a  particu- 
lar division  of  the  subject.  Voigt's  interpretation  of 
"sequitas"  gives  no  objective  definition  of  its  nature, 
but  merely  indicates  the  subjective  influences  affecting 
its  development.  Nor  is  it  the  case  that  maturing  legal 
convictions,  under  all  conditions,  times,  and  places,  find 
representation  in  "sequitas."  It  applies  historically  to 
the  growing  consciousness  and  general  development  of 
the  legal  sense  in  the  Roman  evolution  of  law;  but  this 
is  not  a  philosophical  interpretation,  and  sheds  no  light 
upon  the  nature  of  "sequitas."^ 

The  third  view  is  that  "aquitas"  represents  a  "prac- 
tical concession  as  the  directive  principle  of  a  progres- 
sive legal  development  which  finds  itself  in  opposition 
to  the  strict  civil  law.^  This  view  may  be  endorsed,  but 
requires  to  be  amended.  "/Equitas"  is  the  expression 
in  Voigt's  sense  of  a  progressive  legal  attitude;  but 
philosophically  its  significance  lies  not  in  its  furtherance 
of  a  growing  theoretical  position,  but  in  its  introduc- 
tion of  the  principle  of  practical  justice  into  the  province 
of  law.  This  view  must  be  supplemented  by  the  con- 
sideration of  the  origin  of  the  objective  factors  by 
virtue  of  which  practical  justice  prevailed  over  formal 
justice.  This  objective  factor  was  supplied  by  ethics. 
Ethics  was  first  introduced  in  Roman  law  through  the 
encroachment  of  "aequitas"  upon  the  older  severer 
conception  of  legal  right.  It  may  be  that  the  introduc- 
tion of  "aequitas"  came  by  way  of  the  growing  relations 
of  the  Romans  with  foreign  peoples;  but  its  formal 
legal  introduction  was  due  to  the  authority  of  the  praetors. 

1  Hildenhrand,  "Geschichte,"  etc.,  says  (p.  624):  "It  was  not 
'aequitas'  because  it  was  commanded  by  the  spirit  of  the  times,  but 
was  approved  by  that  spirit  because  it  was  'aequitas.'  " 

2  Hildenbrand,  "Geschichte,"  etc.,  p.  624. 


86  THE  CIVIC   EMPIRE  [Ch.  hi 

The  subjective  factor  was  the  growing  legal  consciousness; 
but  its  objective  ground  and  support  was  the  ethical 
conception.  Summarizing  the  result  in  simple  terms, 
one  may  speak  of  it  as  the  recognition  that  laws  exist 
for  the  sake  of  man;  or  in  philosophical  terms,  as  the 
introduction  of  the  conception  of  humanity  in  Roman  law. 
In  the  later  development  of  the  philosophy  of  law, 
"bonum"  and  "aequum"  were  co-ordinate,  "jus  est  ars 
boni  et  sequi" ;^  and  the  entire  field  of  law,  as  indeed 
of  culture  in  general,  was  pervaded  by  the  spirit  of  equity. ^ 
Early  law  recognizes  only  holders  of  rights  and  not 
men  as  legal  subjects.  The  subject  of  early  Roman  law 
was  not  the  man  as  such,  but  merely  the  "persona." 
Man  came  into  legal  existence  when  he  stepped  upon  the 
stage  of  the  law  and  assumed  the  artificial  role  or  mask 
of  the  "persona."^  Accordingly  the  Roman  citizen  was 
alone  prominently  considered  as  a  subject  of  law,  and  the 
paternal,  "agnate,"  relationship  was  supreme.  Early 
law  recognized  only  legal  transactions;  conduct  and  its 
material  consequences  were  non-existent  for  the  law  so 
long  as  they  did  not  come  under  the  formal  require- 
ments of  legal  provisions;  but  the  reconstructed  law 
reflected  the  principle:  "Nemo  cum  damno  alterius 
locuplctior    fieri    debet. "^      Through    this    means    legal 

*  I,  1,  pr.  D.  I,  1;  and  §  1  cod.:  "Justitiam  .  .  .  colimuset  honi 
et  cequi  notitiam  profitcmur,  ajqiium  ab  iiiifiuo  separantes."  [See,  in 
this  connection,  Maine,  "Ancient  Law"  (Chapt.  iii.  Law  of  Nature 
and  Equity),  p.  48;  and  Sir  Frederick  Pollock's  notes  at  pp.  73,  77. 
—  Editor's  Note.] 

2L.  90,  D.  L.  17;  and  L  52  §  3  D.  IL  M;  L  32  pr.  D.  XV,  1: 
I.  2  §  r^  I).  XXXIX,  3;   I.  8  C.  3,  1. 

^Berolzheimcr,  "R(cli)s|)liil."  etc.,  [ip.  101  seq. 

*  Fr.  206  D.  L.,  17:  "Jure  natura;  a.Hiuum  est,  neminem  cum  al- 
terius detrimento  et  injuria  fieri  locupletiorem."  Sec  also  Cicero, 
"i)e  officiis,"  II,  22  §78:  "Aecjuitas  omnis  tollitur.  si-haberc  suum 
cuicjuc  non  licet." 


§  19]  THE  ROMAN   EMPIRE  87 

procedure  became  more  liberal  on  its  formal  side,  and 
more  just  on  its  material  side. 

§19.     The  Roman  Empire:  Introduction  of  the  Philoso- 
phy of  Law  Through  Cicero.     Cicero  (106-43  B.  C.)  was 
the  leading  spirit  in  Roman  legal  philosophy.     He  holds 
this  position  not  by  reason  of  his  command  of  original  and 
fundamental  ideas,  but  as  the  intermediary  of  the  tradi- 
tional philosojjhy  of  Greece,  which  he  made  accessible 
to    his    generation    and    adapted    to    the   conditions   of 
Roman  law.     As  an  eclectic  he  drew  from   the  several 
philosophies  what   appeared   to   him   useful,   and   with 
literary    skill    fused    their    several    contributions.     His 
works  bearing  upon  legal  philosophy  are  the  fragment, 
"Librorum  de  republica  sex  quae  supersunt";   and  "De 
legibus   libri    tres"   and    "De  officiis."     In    his  method 
he  was  influenced  by  Aristotle,  and  in  his  position  by 
the  Stoic  philosophers.     To  him  the  highest  good  was 
to  live  according  to  nature,  "secundum  naturam  vivere" ;  ^ 
the  highest   virtues  were  the  Stoic  ones  of  prudence, 
justice,    magnanimity,   and   temperance — "prudentia," 
"justitia,"  "magnanimitas,"  "moderatio."  ^ 

The  virtue  of  "justitia,"  which  includes  "bene- 
ficientia"  or  willingness  to  make  sacrifices  for 
communal  interest  —  in  modern  phraseology,  par- 
ticipation in  the  social  consciousness  —  is  practically 
set  forth  in  true  Roman  fashion  by  enumerating 
the  duties  and  standards  resulting  therefrom,  such 
as  to  offend  no  one,  "neminem  laede,"  to  live  hon- 
estly,   "honeste    vive,"    to    render   to    each    his    own, 

^  "De  finibus  bonorum  et  maloriim,"  V',  9;  III,  7,  26;  I\',  10,  26; 
V,  9,  24,  26;  "De  officiis,"  III,  3,  13;  I,  4,  14;  I,  5,  14.  "De  finibus," 
V,  21,  .58,  60;  V,  23,  67.  "Deinventione,"  II,  53, 158,  160.  "Tuscu- 
lanarum  disputalionimi"  libri  quinqne,  IV,  15,  45. 

2  "De  off.,"  I,  4,  14,  1,7,  20-23;  "De  fin.,"  V,  23,  65,  67;  "De 
inv.,"  II,  53,  160. 


88  THE  CIVIC  EMPIRE  [Ch.  Ill 

"suum  ciiique  tribuere";^  maxims  that  gained  accept- 
ance throughout  the  Roman  empire.  The  basis  of  this 
philosophy  of  justice  was  the  "naturaHs  ratio,"  the 
natural  order  as  applied  to  ethics  and  law.  Cicero 
uses  a  series  of  synonyms  for  this  conception:  "lex 
naturae, "  "lex  naturalis,"  "natura,"  "lex,"  "lex  summa," 
"coelestis,"  "divina  et  humana."^  ^  ^  Law  and  govern- 
ment are  not  derived  from  arbitrary  enactments  of  man 
but  from  objective  factors,  from  the  moral  spirit  inher- 
ent in  the  natural  order.^  The  recognition  of  the  "lex 
naturalis,"  which  is  "sapientia,"  leads  to  an  insight  into 
the  connection  of  human  affairs  with  divine  decree: 
"rerum  divinarum  atque  humanarum  scientia."*^  In 
so  far  as  practical  conduct  is  infused  with  such  knowl- 
edge, man  is  led  to  harmonize  his  activities  with  the 
"lex  naturalis";  he  confirms  the  "honestas,"  and  exer- 
cises "justitia."^  The  law  as  applied  consists  of  the 
"jus  gentium,"  valid  for  all  peoples,  and  of  the  "jus 
civile,"^  which  is  conditioned  by  special  local  and  tem- 
poral considerations. 

Following  the  example  of  Aristotle,  Cicero  recognizes 
the  principle  of  justice  as  that  of  equality;  and  likewise 

^§3.  J.  I,  1,  and  I,  10  §  I,  D.  I,  1:  "Juris  prsecepta  sunt  haec: 
honestc   vivere,  alterum  non  laedere,  suum  cuique  tribuere." 

2  "De  leg.,"  I,G;   11,24;  I,  G;   11,4. 

3  "De  off.,"  Ill,  6,  17;  5. 

*  "De  natura  deorum,"  I,  14. 

6  "De  rep.,"  II,  1.     "De  leg.,"  11,4. 

6  "De  off.,"  I,  43,  153.  Compare  with  this  §  1,  J.  I,  1:  "Juris- 
prudent ia  est  divinarum  atque  humanarum  rerum  notitia,  justi 
atque  injusti  srientia."  On  "naturalis  and  civilis  ratio,"  see-B.  W. 
Leisi,  "Zivilist ischc  Studien,"  I,  pp.  76-99,  and  his  sources,  pp.  77 
seq.;  also  IV,  (Jena  1S77,)  pp.  1-13;  35-37;  50-00;  170-174;  174- 
170;  221  scq. 

7  "De  off.,"  1,4,  14;   l.W;   111,7,17;   11,12;   1,17. 
»"Dercpubl.,"  111,22;   I,  32;  25;  XXXII,  48. 


§20]  CHRISTIAN   ETHICS  89 

makes  the  social  impulse  the  incentive  for  the  formation 
of  the  community,  which  in  turn  grows  from  its  simplest 
form  in  the  family  to  its  more  complex  stages  through 
the  State  up  to  the  "societas  hominum,"  the  universal 
brotherhood  of  the  Stoics,  and  the  "societas  hominum 
atque  deorum,"  the  cosmic  commonwealth.  The  essen- 
tial function  of  the  State  is  to  serve  as  the  fountain- 
head  of  law,  and  as  the  welfare  of  the  people,  "quid  est 
enim   civitas   nisi   juris  societas?"^ 

Seneca,  the  Stoic  (3  B.C.-65  A.D.),  was  likewise  influ- 
ential in  transferring  the  doctrine  of  human  equality 
and  liberty  to  the  sphere  of  law  and  government. ^ 

§  20.  The  Decline  of  the  Ancient  Empire :  Christian  Ethics. 
The  period  of  the  decline  of  the  Roman  Empire  wit- 
nessed the  advancement  of  Christianity  to  an  estab- 
lished national  religion.  Christianity  displaced  the 
Greek  mythology,  and  through  its  ethics  influenced  the 
development  of  law,  the  organization  of  government,  and 
the  freest  expansion  of  both.  It  is  this  cultural  signif- 
icance of  Christian  ethics  that  must  first  be  considered. 
There  is  a  certain  analogy  between  the  symbolic  per- 
sonifications revered  as  gods  or  as  representatives  of  the 
divine  idea,  and  the  distinctive  purposes  of  ethics.  Prim- 
itive man  made  a  fetish  of  some  phase  of  inanimate 
nature  or  natural  energy  conceived  as  a  symbol  of  the 
divine,  such  as  the  power  of  fire,  or  the  vast,  silent,  mys- 
terious majesty  of  the  grove.  At  such  a  stage  of  culture 
explicit  ethical  ideals  are  lacking.    The  Egyptians    in 

1  "De  leg.,"  11,4,  5;  III,  12. 

2  "De  beneficiis,"  I,  III,  chap.  20:  "Errat,  si  quis  existimat  Servi- 
tuten! in  totum  hominem  descendere:  pars  melior  eins  excepta  est. 
Corpora  obnoxia  sunt,  et  adscripta  dominis:  mens  quidem  sui 
juris."  "Opera  omnia."  T.  II,  Lipsise  1877,  p.  154)  Epistola  XLVII: 
"Servisunt?  immo  homines"  ("Opera  omnia,"  T.  Ill,  Lipsiae  1878, 
p.  106). 


90  THE  CIVIC   EMPIRE  [Ch.  hi 

turn  held  certain  animals  as  sacred,  and  accorded  them 
a  greater  ethical  consideration  than  they  gave  to  their 
own  kind.  Mosaic  Judaism  looked  upon  its  God,  if  not 
exclusively,  yet  primarily,  as  the  God  of  Israel;  and 
Jewish  ethics  in  general  applied  to  the  people  of  Israel 
alone. 

The  Greek  ideal  was  the  Hellenic  aristocrat,  cultivated 
spiritually  and  physically;  and  the  gods  were  modeled 
upon  this  type.  Greek  ethics  was  aristocratic,  like  the 
Greek  gods,  who,  in  turn,  were  not  free  from  the  failings 
of  polite  Greek  society.  In  contrast  Christian  monothe- 
ism aspired  to  uni\ersality.  The  God  of  the  New  Tes- 
tament was  proclaimed  the  Father  and  Protector  of  all, 
the  Consolation  and  Support  of  the  weak  and  the  needy. 
Christian  ethics  embraced  mankind  in  its  totality,  and 
made  the  individual  a  member  of  an  enlightened  fellow- 
ship, a  spiritual  being  endowed  with  the  potency  of  ideal 
conceptions.  Ethics  thus  reached  its  highest  expression. 
From  the  appearance  of  Christianity,  mankind  has  en- 
deavored to  api^ly  a  universal  humanitarian  ethics  to 
the  practical  problems  of  life,  society  and  government. 
But  the  conception  was  limited  to  a  Christian  article 
of  faith  so  long  as  the  absence  of  temporal  power  de- 
prived it  of  access  to  law  and  government.  And  therein 
lies  the  fundamental  significance  of  the  elevation  of 
Christianity  to  an  established  religion  within  the  Roman 
Empire. 

Communists  have  ever  contended  that  their  teachings 
are  the  logical  issue  of  Christianity;  that  Christian 
charity  is  realized  in  communism.  This  view  is  hardly 
in  accord  with  historical  fact.  The  social  ethics  of 
Christianity  forms  the  last  link  in  the  chain  of  ancient 
moral  systems,  each  in  turn  growing  out  of  the  religious 
views  of  tlie  ]icople  and  intimately  bound  up  with  them. 
Early  ethical  systems  aim  to  hold  self-seeking  in  check: 


§20]  CHRISTIAN   ETHICS  91 

this  is  the  basic  principle  of  the  sacrificial  cult  of  primi- 
tive peoples,  which  is  continued  under  the  form  of 
sacrifice  to  the  gods  from  the  abundance  of  temporal 
possessions.  But  the  form  of  the  sacrifice  constantly 
changes,  becoming  ever  more  refined  and  spiritualized. 
The  Israelitic  cult  made  a  step  in  advance  by  the  abolition 
of  human  victims,  as  set  forth  in  the  story  of  Abraham's 
sacrifice.  The  spirit  of  Greek  ethics  appears  in  the 
condemnation  of  "Hybris,"  offensive  to  men  and  gods, 
in  the  vanquishing  of  an  unbounded  egoism,  and  in  the 
myth  of  the  Ring  of  Polycrates.  Christian  ethics  spirit- 
ualized the  entire  sacrificial  conception  by  transferring 
it  from  matter  to  spirit.  It  appeared  in  the  precept  of 
neighborly  love,  exercised  not  selfishly,  or  limited  to 
one's  own  family,  but  as  an  expression  of  humanitarian 
sympathy.  A,  universal  ethics,  embracing  all  humanity, 
required  a  world-empire  for  its  development. 

Considered  theoretically,  law  and  ethics  are  cultural 
forces  that  confer  upon  men  an  increased  efficiency  by 
introducing  order  into  the  communal  life,  by  securing 
a  sphere  of  action  for  the  free  will  of  the  individual  within 
the  community,  and  by  checking  the  ove:  weening  course 
of  personal  power — -thus  avoiding  "Hybris,"  and  setting 
limits  to  arbitrary  authority.  In  this  alliance  ethics  be- 
comes a  higher,  more  powerful  force  than  law;  for  law 
ever  requires  the  support  of  an  efücient  external  or- 
ganization to  give  it  valid  authority  and  enforcement. 
Ethics  directly  afTects  the  training  of  human  personality 
through  moral  motives  without  the  intervention  of  exter- 
nal aid.  Ethics  is  thus  the  more  comprehensive  cultural 
development.^ 

'  Mechanically  expressed,  if  ethics  attains  the  same  power  o'' 
efficiency  without  additional  means  as  law  attains  only  with  the 
instrument  of  legal  compulsion,  then  is  ethics  more  powerful  in  com- 
parison with  law  by  as  much  as  the  additionaf  means  increases  the 
power. 


92  THE  CIVIC   EMPIRE  [Ch.  hi 

The  ethics  of  Christianity,  compared  with  all  pre- 
ceding systems,  assumes  a  higher  cultural  status  and 
influence  through  its  extension  of  salvation  to  all 
humanity  and  through  its  emancipation  of  the  larger 
relations  of  human  welfare. 


§21/    SPIRITUAL  DOMINANCE  OF  ROME        93 


CHAPTER  IV 
THE   BONDAGE  OF  MEDIiEVALISM 

THESPIRITUAL  DOMINANCE  OF  ROME:  ST.  AUGUSTINE,  THOMAS 
AQUINAS,  THE  DOCTRINE  OF  THE  "TWO  SWORDS":  (1)  THE  CHURCH 
AND  GREEK  PHILOSOPHY;  (2)  THE  PHILOSOPHY  OF  ST.  AUGUSTINE; 
(3)  THE  PHILOSOPHY  OF  THOMAS  AQUINAS;  (4)  THE  DOCTRINE  OF 
THE  "TWO  SWORDS."— ECONOMIC  AND  SOCIAL  RESTRICTIONS:  (1) 
THE  YEOMAN  AND  THE  CITIZEN  CLASS;  (2)  THE  ECONOMIC 
INFLUENCE  OF  THE  CHURCH;  (3)  THE  CRAFTS  AND  TRADES.— 
THE  LIBERALIZING  TRENDS  OF  THE  MIDDLE  AGES:  (1)  DANTE; 
(2)  WILLIAM  OF  OCCAM;  (3)  MARSILIUS  OF  PADUA  AND  THE 
SOVEREIGNTY  OF  THE  PEOPLE;  (4)  NICHOLAUS  CUSANUS;  (5) 
MACCHIAVELLI. 

§  21.  The  Spiritual  Dominance  of  Rome  (St.  Augus- 
tine; Thomas  Aquinas ;  The  Doctrine  of  the  Two  Swords). 
1 :  The  Church  and  Greek  Philosophy.  After  the  de- 
struction of  the  Roman  Empire  the  domination  of  Rome 
became  stronger  than  ever;  the  ancient  empire  had  held 
sway  over  the  bodies  of  men;  the  empire  of  the  Church 
dominated  their  souls.  The  mediaeval  attitude  towards 
the  law  was  centered  upon  the  position  to  be  assumed  by 
the  faithful  towards  the  material  interests  of  the  State, 
which  was  ruled  by  law  and  devoted  to  industrial  pur- 
suits. Such  position  was  not  determined  on  the  basis 
of  comprehensive  philosophic  principles.  Mediaeval 
learning  was  not  concerned  with  the  interpretation  and 
justification  of  the  complex  economic  world  of  affairs, 
but  with  the  adjustment  of  existing  institutions  to  the 
purposes     of     an     all-embracing     Church;      hence     its 


94  BONDAGE  OF  MEDIEVALISM      [Ch.  iv 

philosophy  of  law  was  a  philosophy  of  comioromise. 
The  Church  doctrine,  as  expressed  in  the  Scriptures, 
supplied  one  of  the  factors  necessary  for  such  construc- 
tion; the  other,  the  philosophy  of  earthly  order  and 
economy,  was  likewise  accepted  from  established  sources. 
Ancient  Greece  offered  such  an  harmonious  system:  the 
only  serious  choice  was  that  between  Plato  and  Aris- 
totle, and  the  decision  was  not  difficult  to  reach.  If 
the  purpose  sought  in  Greek  philosophy  was  the  loftiest 
expression  of  eternal  truth,  Plato  would  unhesitatingly 
be  recognized  as  its  chief  exponent;  if  the  object  was  a 
practical  philosophic  construction  adequate  to  the  needs 
of  life,  then  Aristotle  would  inspire  greater  confidence. 
And  thus  the  Aristotelean  doctrines  were  accepted  by, 
or  rather  welded  to,  the  ecclesiastical  system.  The 
requisite  amalgamation  was  accomplished  in  the  main 
by  the  important  activities  of  two  leaders:  Augustine^ 
in  the  early  period,  and  Thomas  Aquinas  -  in  the  later 
peri(;d  of  the  Middle  Ages, 

2:  The  Philosophy  of  St.  Augustine.  The  funda- 
mental doctrine  of  Augustine  (353-430)  was  that  the 
Church   has  unconditional  sovereignty  over  the  State. 

*  "Dc  civitate  Dei,"  libri  XXII.  I  cite  from  the  edition  issued  by 
Teubner  of  Leipzig,  in  two  volumes,  1877. 

-  Summa  theologiaj  prima  secundae  qu.  90-97,  secunda  secundae 
qu.  r)7-S0,  120,  122  (edition  Lugduni  1677).  "I)e  regimine  prin- 
ciijum,"  lihri  IV,  l.')()9  (Books  I  and  II  by  Thomas,  the  rest  by 
Ptoleiiiieus  I.iiccnsis).  I  liave  before  me  two  editions,  —  "I3ivi 
'IhouKe  A(|uinalis,  'lOinus  XVII  complectens  opuscula  omnia, 
Antvcrpia!  1012,  Opusculum  XX,  De  regimine  principum  ad  regem 
Cypri"  (pj).  101-193);  and,  "Divi  Thoma;  Aquinatis  opera,"  editio 
altera  Veneta,  Tomus  19  complectens  opusc.  theolog.  Venetiis 
17r)4,  Opusc.  XX.  De  r(\gimine  principum  ad  regem  Cypri"  (pp. 
.724  019).  In  sonic  cdii  ions  this  work  is  publislicd  under  tlie  title 
of  "De  rcbuspnblicis  el  principum  institutionc,"  lil)ri  ]\';  for 
instance,  in  the  Lugduni  Batavorum  edition,  1002. 


§21]    SPIRITUAL  DOMINANCE  OF  ROME        95 

The  Church  secures  eternal  salvation;  the  State  but 
temporal  protection.  Yet  Church  and  State  are  both 
conceived  as  "civitas,"  corresponding  to  the  Greek 
"ttoAis,"  though  the  term  "civitas"  is  to  be  understood 
metaphorically  or  even  metaphysically  ("mysticc").^ 
Subordinate  to  the  "civitas  Dei"  ("cselestis")  is  the 
"civitas  terrena."  At  the  end  of  time  the  "civitas 
Dei"  will  alone  prevail,  and  the  "civitas  terrena"  will 
be  dissolved.  The  State  is  justified  as  a  necessary 
means  of  keeping  peace  on  earth;  for  this  reason  the 
laws  of  the  State  must  be  obeyed.  While  Augustine 
thus  justifies  the  existence  of  the  State,  yet  in  certain 
passages  he  rejects  and  renounces  it.  These  several 
statements  of  Augustine  are  not  in  reality  contradictory.^ 
The  spirit  of  mediaeval  teaching  justifies  the  State  so  far 
as  it  favored  the  service  of  the  Church,  but  otherwise 
was  opposed  to  it.  A  Christian  State  was  pleasing  to 
God,  but  a  heathen  State  was  the  work  of  Satan. 

Augustine's  doctrine  of  evil  is  characteristic.  Accord- 
ing to  him  evil  is  not  substance,^  but  the  dissolution  of 
substance,  the  withdrawal  of  gotxl,  "privatio  et  cor- 
ruptio  boni."  It  thus  consists  in  the  lack  of  character; 
its  nature  is  wholly  negative  or  privative.*     In  this  con- 

»See  "De  civ.  D.,"  XV,  chap.  I;  XIX,  chap.  11,  Slahl,  in 
"Die  Geschichte  der  Rechtsphilosophie"  (p.  46),  renders  the  expres- 
sion "mysticum"  by  the  word  "symbolic."  See  also  Renter, 
"Augustinische  Studien,"  pp.  128,  131. 

^Geyer,  "Geschichte  und  System  der  Rechtsphilosophie  in  Grund- 
zügen," p.  25.  Only  the  second  conception  is  given  by  Mohl, 
"Die  Geschichte  und  Literatur  der  Staatswissenschtiften,"  p.  225. 

ä  For  example  sqq  Augustine,  "Decontinentia,"  21  ("Corpus  scrip- 
torum  ecclesiasticorum  latinorum,"  Vol.  XL,  sect.  V,  Part  III, 
Pragse,  Vindobonse,  Lipsiae  1900,  p.  1()()):  "ibi  omnibus  erit  darum 
atque  pcrspicuum,  quod  nunc  a  fidelibus  multis  creditur,  a  paucis 
intelligitur,  malum  non  esse  substantiam." 

*  "De  civitate  Dei,"  XIX,  13.  See  Scipio,  "Des  Aurelius  Augus- 
tinus Metaphysik,"  pp.  SO-69. 


96  BONDAGE  OF  MEDIEVALISM      [Ch.  IV 

ception  Augustine  proves  himself  more  successful  than 
Spinoza,  whose  pantheism  could  not  completely  recon- 
cile the  antagonism  of  evil  with  the  purposes  of  culture. 
Augustine  also  anticipates  the  Hegelian  conception  that 
only  what  is  rational  is  real:  injustice  is  not  real,  but 
the  mere  negation  of  justice. 

The  most  important  place  in  Augustine's  philosophy 
of  law  is  occupied  by  the  doctrine  of  "Pax."  ^  "Pax"  is 
not  peace,  but  that  which  brings  peace,  the  blissful, 
sacred  order. ^  Every  organism  and  every  part  thereof 
has  its  own  objective  assigned  order:  the  body,  in  rela- 
tion to  its  parts  and  members,  "pax  corporis";  the 
unreasoning  creation  in  the  regulation  of  their  instincts, 
"pax  animae  in  rationalis";  rational  beings  in  the  har- 
mony between  their  activities  and  knowledge,  "pax 
animae  rationalis  ordinata  cognitionis  actionisque  con- 
sensio";  and  so  on.  In  like  manner  there  is  a  principle 
of  order  for  the  State,  namely,  "ordinata  imperandi 
atque  oboediendi  concordia  civium";  and  no  less  so  for 
the  "cseleslis  civitas,"  namely,  "ordinatissima,"  min- 
utely regulated;  "et  concordissima,"  in  complete 
accord,  "societas  fruendi  Deo  ct  invicem  in  Deo."  ^ 

The  concept  of  "Pax,"  which  forms  the  immortal  con- 
tribution of  Augustine,  became  an  essential  part  of 
mediaeval  philoso]ihy.  What  Augustine  sets  forth  as 
"Pax"  a])i)ears  to  have  been  a  possession  of  all  cultures. 
We  may  recall  that  to  the  Vedic  Aryans  the  central 
])inlos()])hic  C()nce])tion  of  organized  nature  was  "rita," 
which  included  the  natural  and  the  human  order.     A 

*  Cciiiiparc  with  tliis  Scipio,  "IX's  Aurclius,"  etc.,  pp.  41  seq.; 
and  Bcrnhciiii,  "l*i)li(is(lu>  Begriffe  des  Miitclalu-rs  im  Liclite  der 
Anschauungen  AiiKUstins,"  jip.  'A  G,  13  sc'(i. 

*  "De  civ.  I).,"  lib.  XIX,  chap,  lii:  "pax  omnium  i'crum  tran- 
(|nillilas  ordinis." 

'  "De  civ.  D.,"  lib.  XIX,  cliap.  \'.\,  introduclion. 


§21]    SPIRITUAL  DOMINANCE  OF  ROME        97 

closely  related  conception  was  "dhama."  ^  The  Greeks, 
by  emphasizing  the  creative  energy,  made  of  "rita," 
"^i/o-is,"  and  of  "dhama,"  "Öt'/Ais."  "^  The  Romans, 
through  the  Greeks,  derived  from  "rita"  their  central 
conception  "ratum,"  "ratio,"  "naturalis  ratio";'  and 
Augustine  christianized  "rita"  into  "Pax."  Order  is 
the  universal  bond  *  that  holds  the  world  together; 
order  assigns  a  place  to  all  created  things;  it  is  a  direc- 
tive and  distributive  justice.^  Order  is  universally 
sought  and  esteemed.  The  opponents  of  order  are  not 
opposed  to  the  principle;  they  renounce  the  existing 
order  of  things  but  not  order  itself.^ 

"Pax"  acquires  a  special  significance  for  ethics.  It 
becomes  the  regulating  princijjle  which  as  " auxfipoavvr]" 
protects  man  from  "vßpL-;,'"  from  an  overweening 
egoism.  It  sets  limits  to  individual  assertion  and 
makes  man  a  concordant  member  of  the  cosmos  —  at 
peace  with  himself  and  with  God,  protecting  him  from 
earthly  misfortune  and  securing  his  salvation.^  "Pax" 
is  the  supreme  source  of  energy  from  which  civilization 

^  See  above  §  10. 

^  See  above,  §  13. 

3  See  above,  §§10,  18,  19. 

*  "De  pace  universal!,  quae  inter  quaslibet  pertiirbationes  privari 
non  potest  lege  naturae."     The  heading  of  chapter  13,  Book  19. 

^  "Ordo  est  parium  dispariiimque  rerum  sua  cuique  loca  tribuens 
dispositio."  "De  civ.  D.,"  lib.  XIX,  chap.  13.  One  is  reminded 
of  the  Roman,  "Justitia  est  constans  et  perpetua  voluntas  jus  suum 
cuique  tribuens"  (pr.  Inst.  I,  1).  But  this  is  merely  an  expression 
of  "ordo"  in  general  ^ — -the  application  of  "ordo"  to  distributive 
justice. 

^  "De  civ.  D.,"  lib.  XIX,  chap.  12:  "Nam  et  illi  qui  pacem, 
in  qua  sunt,  perturbari  volunt,  non  pacem  oderunt,  sed  eam  pro 
arbitrio  suo  cupiunt  commutari.  Non  ergo  ut  sit  pax  nolunt,  sed 
ut  ea  sit  quam  volunt." 

^"De  civ.  D.,"  lib.  XIX,  chaps.  4,  10,  11,  13,  14;  lib.  XXI, 
chap.  25. 


98  BONDAGE  OF  MEDIEVALISM     [Ch.  iv 

proceeds;  as  the  earthly  order,  it  proceeds  from  the 
cultivation  of  law;  as  the  harmony  of  man's  spiritual  life 
and  his  physical  activity,  it  becomes  the  goal  of  ethical 
cultivation.  Thus  Augustine,  despite  his  theology,  his 
religious  dependence,  and  his  narrow  dogmatism, 
shows  a  deep  and  comprehensive  recognition  of  the 
philosophical  basis  of  law. 

3:  The  Philosophy  of  Thomas  Aquinas.  The  legal 
philosophy  of  the  Middle  Ages  culminated  in  Thomas 
Aquinas  (1228-1274),  who  presented  and  defended  the 
Catholic  position  with  extraordinary  keenness  and 
insight.  He  begins  with  a  dualistic  principle;  he  con- 
ceives the  principle  of  evil   as  the  temptation  bv  the 


devil,  and  the  principle  of  good  p^  TTriH  God  inclines 
men  to  good  by  fostering  knowlerW  tl^rough  law,  and 
by  strengthening  their  will  by  his  mercy. ^  Hence  the 
natiire^of__[aw  .iTiust  be  underst'^'^rl  Accepting  the 
position  of  Augustine,  Aquinas  assumes  a  "summa 
ratio,"  a  "lex  a^terna,"  derived  from  the  divine  reason, 
and  expressed  in  the  iM-inciple  of  temporal  rule.  From 
the  absolute  rule  of  God  arises  natural  law,  "lex  natu- 
ralis." The  lalter"TTiTty--apprTIf  superfluous:  "Sufficienter 
enim  homo  gul)crnatur  i^er  legem  a^tcrnam."  In  reality 
Aquinas  recognizes  natural  law,  from  which  men  and 
Slates  without  a  "lex  scripta"  dfMJvo  ihn  knowWkp  of 
gooil__and— evil.  The  "lex  natuniTis  is  the  "partici- 
patio"  of  mankind  in  the  "lex  a^terna,"  by  virtue  of 
which  men,  (lesi)ite  tlie  limitations  of  human  knowledge 
through  the  fall  of  man,  derive  the  distinction  of  good 
and  evil,  "secuiuhnn  (inam  bonum  vt  malum  dis- 
cemunt."  ^    In  addition  1o  the  law  of  thedivine  regulation 

•  IT,  1  qii.  00;  "I'liiicipiiiiii  .  .  .  cxlcriiis  afl  nialiun  inrlinans  est 
flialxiliis.  .  .  .  Prim  ipiiini  .  .  .  cxlcriiis  nio\'ciis  ad  Ixiiiiiin  est 
I  )ciis,  f|ui  cl  iiDs  iiisi  mil  per  legem,  ct  jii\al  jier  ,i;ral  iani." 

2  II,  I  <|ii.  «11,  art.  1;  (jii.  0:i.  II,  1  qu.  91,  art.  2.  II,  1  qii.  91, 
art.  '2,  ( <»ii<  Ins.;   (|ii.  91,  arls.  2  and  .'>. 


§  21]    SPIRITUAL   DOMINANCE  OF  ROME        99 

of  the  world,  the  "lex  a^tcrna,"  and  of  the  natural  law,  the 
"lex  naturalis,"  there  is  a  third,  a  positive  law,  the  "lex 
quaedam  ab  hominibus  inventa."  Positive  law  carries 
out  in  detail  the  principles  of  natural  law.*^  The  purpose 
of  the  law  is  the  perfection  of  man,  "homines  facere 
bonos."  The  master  should  rule  justly,  "bene  imperare" ; 
and  the  subject's  primary  duty  is  to  be  justly  obedient,^ 
"subditorum  propria  virtus."  Positive  law  should  be 
foujidecLupon  justice :  should  be  in  harmony  with  morajity , 
"legem  .  .  .  honestam";  adapted  to  what  is  feasible, 
"possibilem" ;  concordant  with  the  natural  order,  "se- 
cundum  naturam";  considerate  of  local  tradition,  "se- 
cundum patriae  consuetudinem" ;  responsive  to  condition 
and  circumstance,  "necessariam" ;  useful  and  concise, 
meeting  public  needs. ^  It  must  consider  the  imper- 
fection of  humanity,  and  must  define  the  range  of  for- 
bidden conduct  more  narrowly  than  do  the  precepts  of 
ethics.  The  law  specifies  only  the  more  serious  offenses, 
"non  .  .  .  omnia  vitia  cohibere,  sed  graviora  tantum," 
that  menace  human  society,  and  from  which  most  men 
are  able  to  refrain,  "a  quibis  possibile  est  majorem 
partem  multitudinis  abstinere."  ^ 

Aquinas  sets  forth  the  distinction  between  what  is 
moral  and  what  the  law  forbids  and  punishes.  As  the 
Roman  jurists  found  the  norm  or  central  point  of  their 
system,  to  which  all  enactments  converged  in  the  "bonus 
paterfamilias,"  so  Aquinas  finds  in  the  average  nature 
of  man  the  limitations  of  legal  restraint.  He  is  thus  the 
first  philosopher  to  establish  an  appropriate  penological 

^  "Secundum  quam  (in  other  words,  of  the  positive  law)  dispo- 
nunter  quae  in  lege  naturae  continentur,"  II,  1  qu.  91,  art.  3.  See 
also  II,  1  qu.  93,  arts.  3  and  6,  qu.  95,  art.  2. 

MI,  1  qu.  92. 

3  II,  1  qu.  95,  art.  3.     Also  qu.  9G,  art.  1;    11,2  qu.  57. 

4  II,  1  qu.  96,  art.  2. 


100  BONDAGE  OF  MEDIEVALISM      [Ch.  iv 

principle,  and  correctly  to  determine  its  application. 
He  recognizes  custom  as  a  source  of  law,  but  limits  its 
domain.^  Positive  law  should  be  modified  only  for 
sufficient  grounds,  either  by  reason  of  necessity  or  of 
notable  benefit;  for  otherwise  the  harm,  the  insecurity 
brought  about  by  constant  change  of  the  law,  would 
outweigh  the  advantage. ^ 

Justice,  which  Aquinas  defines  in  conformity  with 
its  place  in  Roman  jurisprudence,^  is  one  of  the  four 
cardinal  virtues,  "temperantia,  prudentia,  fortitudo, 
justitia."'*  Justice  is  either  "justitia  generalis"  or 
"justitia  particularis."  "Justitia  generalis"  comprises 
all  earthly  virtues.^  "Justitia  particularis"  ^  is  divided 
into  "justitia  commutativa,"  and  "distributiva."  ^ 
The  principle,  "medium,"  by  means  of  which  "justitia 
particularis"  finds  application  is,  in  agreement  with 
Aristotle,  "aqualitas."  ^  From  "justitia  commuta- 
tiva" arises  the  obligation  of  restitution  to  prevent 
unwarranted  acquisition.^  "/Equalitas  justitiae"  be- 
comes superior  to  the  prescriptions  of  the  positive  law 

1  II,  1  qu.  97,  art.  3. 

=  II,  1  qu.  97,  tirt.  2. 

^  II,  2  qu.  58,  art.  1,  conclus.     Sec  also  pr.  Inst.  I,  1. 

*  II,  2  qu.  58,  art.  3,  §  3,  and  conclus. 

5  11,  2qu.  58,  arts.  3,  5,  G. 

MI,2qu.  58,  arts.  7,8. 

'  11,2  (lu.Gl. 

'  II,  2  '\u.  58,  art.  X:  "/Equalc  auteni  est  realiter  medium  inter 
majus  et  minus."  In  distributive  justice  the  ai)[)iication  of  justice 
proceeds  by  ^geometrical  proi)ortions,  in  commutative  by  arithmeti- 
cal. II,  2  qu.  (11,  ;ni.  2.  See  i\\so  Batinianu,  "Die  Staatslehre  des 
h.  Thomas  xon  Acjuino,"  pp.  1ÜÜ-I92. 

MI,2uu.  G2. 


§21]    SPIRITUAL  DOMINANCE  OF  ROME      IUI 

through  "sequitas,"  ^  "sup])lendo  ex  rcctii  ratione,  quod 
verbis  scriptarum  legum  deest."  The  right  of  punish- 
ment is  considered  casuistically  and  indeterminately  in 
respect  to  the  severed  theories  of  punishment.  Usury, 
"usura,"  is  denounced  on  the  ordinary  scholastic 
ground;  "cum  pecuniae  usus  sit  illius  consumptio  ac 
destructio,  injustum  ct  illicitum  est  pro  eius  usu  aliquid 
accipere."  ^ 

4:  The  Doctrine  of  the  Two  Swords.  In  the  later 
mediaeval  conception  of  the  State,  two  opposed  influences 
meet:  the  vigorous  Roman  Empire  of  the  Caesars,  con- 
served in  the  Roman-German  Empire,  as  the  bearer 
of  the  older  culture  through  which  the  authority  of  the 
Pope  was  established,  confronts  the  Catholic  Church 
which  had  usurped  control  of  all  temporal  power.  The 
Church  found  its  philosophic  support  in  Augustine's 
doctrine  of  the  "civitas  terrena";  while  the  Aristotelean 
philosophy  favored  a  more  restricted  conception  of 
ecclesiastical  rule.  It  was  agreed  that  temporal  and 
spiritual  power  are  alike  conferred  by  God,  but  there 
arose  a  violent  conflict  of  opinion  and  doctrine  as  to 
whether  the  temporal  sword  is  conferred  upon  the 
ruler  directly  by  God  or  through  the  mediacy  of  the 
Pope.  Upon  this  question  Guelphs  and  Ghibellines 
were  divided;  and  the  old  Saxon  law  took  the  side 
of  the  temporal  power  in  opposition  to  the  old  Suabian 
law. 

The  doctrine  of  the  "two  swords"  typifies  the  most 
important  political  issue  of  mediaevalism.     Upon  it  W. 

1  II,  qu.  120.     "Epiikeia"  of  Aristotle. 

-  II,  2  qu.  78,  art.  1,  conclus.  See  also  Berolzheimer,  "Das  Ver- 
mögen (Hirth's  Ann.,  1904,  pp.  601  seq.).  Baumann,  "Die  Staatsl.," 
etc.,  pp.  196-203.  Aiig.  Oncken,  "Geschichte  der  Nationalökon- 
omie," I,  pp.  132-135. 


102  BONDAGE  OF  MEDIEVALISM      [Ch.  IV 

Grimm  comments:^  "Christ  bade  his  disciples  buy  a 
sword,  and  when  they  brought  two,  he  said,  'It  is  enough.' 
Who  w^ould  have  thought  that  the  biassed  interpreta- 
tion of  these  simple  words,  in  which  no  unprejudiced 
mind  could  suspect  covert  allusion,  should  for  centuries 
serve  to  justify  the  rival  claims  of  the  two  greatest 
of  earthly  powers!"  The  doctrine  of  the  two  swords 
is  a  clear  confirmation  of  the  importance  of  "illusion" 
in  the  practical  or  applied  philosophy  of  law,  which  is 
politics.  A  formal  reasoning,  in  itself  untenable,  is  used 
to  support  a  political  view  in  reality  growing  out  of 
very  different  considerations.  The  Church  party  did 
not  limit  itself  to  the  fictitious  establishment  of  its 
position;  and  it  welcomed  the  pseudo-Isidorian  forgery 
in  support  of  its  claims. 

In  the  work  "De  regimine  principum,"  Aquinas  sets 
forth  the  conception  that  the  State  is  the  product  of 
hun'.an  needs  and  of  the  social  nature  of  man.  It  is 
justified  in  the  interests  of  worldly  virtue  and  general 
welfare  and  would  have  existed  regardless  of  the  fall 
of  man.  Monarchy  is  the  best  form  of  government; 
it  affords  the  largest  security  against  tyranny.  There 
is  no  right  of  rebellion  against  the  ruler;  but  the  omnipo- 
tence of  the  Church  stands  superior  to  the  State.  The 
State  serves  finite  purposes;  the  Church  ministers  to 
the  scnil,  to  moralil>',  to  eternal  salvation.  All  earthly 
kingdoms  are  sul)ject  to  the  Pope,  and  all  rulers  are 
vassals  of  the  Church.- 

Among  the  representatives  of  this  doctrine,  Augus- 
tinus Trium])his  (1243-1328)  may  be  mentioned.  He 
sets  forth  the  reasons  why  the  ]x)wer  of  the  Pope  alone 

'  I'rcfacc  to  Vridaukc's  "Picschcicluiilicit,"  GÖLlingca  1834,  p. 
I,\  II.     Scfalso  pp.  lAil    I.XII. 

■■'"Du  rfj;imim'  [jriiicipiim,"  HI).  1,  chaps.  1,  2,  5,  G,  8,  14;  lib. 
Il.chap. '.);    lib.  Jll,cliap.s.  1   7;   lilj.  IV,  chap.  3. 


§22]  SOCIAL    RESTRICTIONS  103 

is  derived  from  God;  while  the  temporal  power  is 
conferred  upon  the  earthly  rulers  through  the  Pope: 
"in  ministerium."  ^  This  position  is  also  distinctly 
presented  by  Peter  de  Andlo.^ 

§  22,  Economic  and  Social  Restrictions.  1 :  The  Yeo- 
man AND  THE  Citizen  Class.  Characteristic  of  the 
internal  political  structure  of  the  mediaeval  State  was 
the  class  system  and  its  economic  bondage.  The  re- 
sulting stratification  of  society  affected  the  entire  range 
of  human  relations.  The  economic  organization  of  the 
Middle  Ages  was  comprehensive,  constituting  at  once 
a  legal,  an  economic,  and  a  social  bond.  Any  member 
of  a  corporate  guild  was  provided  for;  but  at  the  same 
time  he  was  much  more  essentially  a  member  of  the 
guild  than  he  was  his  own  master.  In  the  course  of 
events  there  resulted  a  shifting  of  power  of  the  several 
classes  within  the  State.  Side  by  side  with  the  feudally 
organized  nobles  and  large  proprietors,  there  appeared 
a  new  class  —  the  middle  class,  as  we  should  now  call 
them — a  third  party,  composed  in  part  of  the  yeomanry, 
but  mainly  of  citizens.  The  yeomen  were  essentially 
freemen  who  had  advanced  from  a  dependent  to  an 
independent  class,  from  tenants  to  small  farmers  owning 

1  Principal  work:  "Summa  de  potestate  papje"  (about  1320). 
The  edition  I  refer  to  is  "Summa  Augustini  de  Ancona  de  potestate 
ecclesiastica,"  1473.  See  also  Friedberg,  "Die  mittelalterlichen 
Lehren  über  das  Verhältnis  von  Staat  und  Kirche,"  pp.  93-110. 
Lasson,  "System  der  Rechtsphilosophie,"  p.  81. 

2  Petri  de  Andlo,  "De  imperio  Romano,  regis  et  augusti  creatione, 
inauguratione  .  .  .  libri  duo;  ad  Fridericum  III  imp.  scripti, 
Argentorati  1603."  Characteristic  are  lib.  I,  chap.  1,  and  lib.  II, 
chap.  9:  "An  maiestatis  Imperialis  auctoritas  derivetur  in  Csesarem 
immediate  a  Deo,  vel  illam  accipiat  ab  eius  vicario  summo."  See 
especially  p.  107. 

Consult  also  Stahl,  "Geschichte  der  Rechtsphilosophie,"  pp.  57, 
63;    Rehm,  "Geschichte  der  Staatsrechtswissenschaft,"  p.  204. 


104  BONDAGE  OF  MEDIEVALISM      [Ch.  iv 

their  own  estates.  Yet  in  many  cases  they  remained 
within  the  dependent  classes,  and  subject  to  the  eco- 
nomic organization  of  the  village  community.  The 
importance  of  the  citizen  class,  however,  steadily  in- 
creased with  the  appearance  and  growth  of  a  new  eco- 
nomic condition,  which  brought  about  the  transition 
from  an  economics  based  upon  natural  commodities 
to  one  based  upon  finance;  or,  inasmuch  as  these  terms 
express  merely  the  external  medium  of  exchange,  it  is 
better  to  call  the  transition  one  from  simple  agriculture 
to  agriculture  combined  with  commerce  and  industry. 
The  prosperity  of  the  cities  and  the  development  of  the 
citizen  class  to  a  powerful  and  wealthy  class  of  the 
community  followed  upon  the  growth  of  industry  and 
commerce.^ 

2:  The  Economic  Influence  of  the  Church.  The 
spirit  of  the  mediaeval  Church  influenced  all  social 
strata.  The  Church  of  those  days  was  Janus-faced,  at 
once  a  tender  protector  and  a  cruel  foe,  an  instrument  of 
civilization  and  an  obstacle  to  true  progress,  forbearing 
and  likewise  harshly  intolerant.  Those  who  acknowledged 
the  power  of  the  Church  shared  in  its  blessings; 
but  a  relentless  persecution  pursued  those  who,  in 
large  or  small  issues,  questioned  the  prerogative  of 
si)irilual  rule.  The  cultural  influence  of  the  mediaeval 
Church  was  exercised  through  instruction  in  the 
schools  of  the  monasi cries,  through  the  maintenance  of 
lil)raries,  ministrations  to  tlie  sick,  and  aid  to  the  poor. 
The  cifltural  and  ethical  functions  of  the  State,  although 
a  temporal  service,  were  exercised  by  the  Church,   .The 

'v.  Iiunna-Stcrnc^ji,  "Deutsche  Wiitliscliaftssicschichte,"  III 
2,  p.  2)i4:  "Tlu"  political  economy  of  the  (lerman  cities  is  domin- 
alcfl  tliroiiKli'>iit  by  the  idea  that  industry  and  trade  can  prosper 
oid\-  under  local  co-ordination  and  the  legal  regulation  of  the  civic 
coniniunwcalt.li." 


§221  SOCIAL  RESTRICTIONS  105 

Church  suppressed  every  independent  agitation  hostile 
to  the  dominance  of  the  priesthood  over  tlie  emotional 
life;  and  thus  apostasy,  heresy,  and  schism  became 
crimes.  The  papal  excommunication  outlawed  and 
ruined  its  victims,  inasmuch  as  its  ban  affected  all 
economic  and  social  ties.  The  papal  power  could  bind 
or  release;  it  could  cancel  even  the  oath  of  the  vassal. 
Even  the  emperor,  if  under  the  ban,  would  be  without 
rights  - — •  a  helpless,  detached  stranger  in  his  own  country. 
The  Church  adapted  its  measures  to  the  coarse 
manners  of  the  times.  The  lords  and  serfs  of  the  Middle 
Ages  enjoyed  a  superabundance  of  physical  energy  and 
strong  nerves.  The  public  infliction  of  punishments, 
cruel  and  disfiguring,  seems  to  have  been  a  gratifying 
spectacle  to  a  scnsatlon-loving  populace;  the  surplus 
energies  of  the  lords  and  their  retinue  were  thus  diverted. 
The  Crusades  became  welcome  outlets  for  the  overflow 
of  unemployed  energy.  Pillaging  expeditions  to  the 
Orient  took  the  place  of  the  bouts  of  the  knights  and 
their  followers,  and  enjoyed  the  papal  favor  as  under- 
takings for  the  greater  glory  of  God;  through  them 
the  countries  of  central  Europe  became  acquainted  with 
the  resources  of  the  Orient.  The  sjiolls  of  war  turned 
out  to  be  valuable  merchandise.  Luxury  increased  and 
extended;  precious  stuff's,  choice  pearls,  jewels  and  orna- 
ments were  highly  prized.  The  Crusades  gradually 
assumed  the  character  of  commercial  raids;  they  became 
huge  caravans  bent  upon  spoliation. ^  Along  with  treas- 
ures, the  plague  made  its  disastrous  entry  into  Europe. 

^Laurent,  "La  feodalite  et  I'eglise,"  p.  630:  "The  feudal  system 
recognized  no  other  mission  for  society  than  warfare.  For  two 
centuries  it  found  its  ideal  and  immortal  glory  in  an  organized 
pillage  of  the  Orient.  The  Crusades,  which  began  as  expressions 
of  religious  fervor,  were  in  the  end  conducted  in  the  commercial 
spirit  and  for  the  satisfaction  of  luxury." 


106  BONDAGE  OF  MEDLEVALISM      [Ch  iV 

When  its  devastations  began  to  decimate  the  population, 
when  want  and  failure  of  crops  brought  the  discontent 
of  the  masses  to  a  ferment,  the  resentment  of  the  mul- 
titude was  diverted;  witches  and  conjurors  were  burned; 
Jews  were  persecuted,  abused,  and  put  to  death,  and 
their  property,  acquired  by  usury,  plundered  by  the 
mob.     The  oriental  raids  were  carried  on  at  home. 

3:  The  Crafts  AND  Trades.  The  economic  activities 
of  the  city  were  directed  by  a  corporate  spirit.  The 
city  as  a  whole  became  an  organized  body  divided  into 
a  group  of  minor  corporations.  The  artisans  of  every 
craft  were  associated  in  guilds;  and  each  guild  formed 
a  power  in  the  community,  bringing  to  its  members 
at  once  influence  and  income,  esteem  and  prosperity, 
while  the  independent  craftsman  had  no  standing.^ 

Politically  organized  industry  was  far  more  powerful 
than  the  growing  commerce.  Commerce  was  younger, 
enjoyed  less  esteem  at  home,  and  was  largely  in  th.e 
hands  of  Jews.  Furthermore  the  nature  of  commerce 
did  not  lend  itself  to  so  rigid  an  organization  as  the 
crafts.  In  commerce  individuality  was  more  prominent ; 
and  for  this  reason  civic  economics  was  mainly  devoted 
to  the  interests  of  the  crafts,  and  the  nucleus  of  the 
new  third  party  was  formed  by  the  crafts  guilds.  The 
merchants  were  enjoined  to  maintain  a  "justum  pr?etium," 
a  fair  price.  They  were  ])ermitted  to  earn  a  livelihood 
for  themselves  and  their  families,  but  not  to  exploit  the 
productive  classes.  A  minutely  organized  ])()lice  regu- 
lated the  market  to  maintain  a  fair  i)roportion  between 

*  V.  Inama-Sicnic^ii,  "nciitsrhc,"  (.'Ic,  III,  1,  p.  SI?:  "Any 
artisan  who  did  not  ac(iuirc  the  right  to  l)clong  to  a  guild  was  so- 
cially and  ocoMoniically  dcljarrcd.  As  an  industrial  interloper  or 
the  like  (in  nKKJern  i)hraseology,  'scab,'  German,  'Rönhase')  he 
was  not  reckoned  as  a  <it  izen.  Indeed  the  toleration  of  his  presence 
in  the  city  was  often  in  donht." 


§22]  SOCIAL  RESTRICTIONS  107 

service  rendered  and  price  demanded.^  The  organized 
trades  flourished  briskly  while  commerce  grew  but 
slowly,  mainly  by  wholesale  export  of  wine  and  fruits 
from  the  South  to  the  North,  and  by  exchange,  at  the 
great  fairs,  of  the  products  of  Orient  and  Occident. 

While  the  powerful  organization  of  the  guilds  repre- 
sented the  economic  bonds  within  the  community,  the 
civic  community  became  the  economic  unit  as  against 
foreign  territories.  The  requirement  of  the  artisan  to 
join  a  guild  was  supplemented  by  a  control  of  the  market. 
This  v/as  of  value  at  once  for  the  purchaser  and  for  the 
seller.  "Just  as  the  city  producer  had  an  exclusive 
market  for  his  product  within  the  city  and  seignorial 
limits,  so  the  city  consumer  demanded  within  these 
limits  an  exclusive  right  of  purchase  as  against  outsiders." 
A  consequence  of  such  policy  and  of  the  resulting  eco- 
nomic situation  was  that  concessions  and  a  fair  market 
became  valuable  assets  and  definite  objects  of  trade." 

Economic  advance  in  the  Middle  Ages  was  parallel 
with  that  of  law  and  general  culture.  Civilization  is 
ever  homogeneous;  the  Church,  the  law,  and  industry 
jointly  secured  to  loyal  citizens  an  adequate  livelihood, 
and  gave  them  a  share  in  the  gay  mediaeval  festivals, 
preserved  to  us  in  the  pictorial  representations  of  those 
times.  It  was  only  as  a  member  of  the  corporate  body 
and  as  a  permanent  part  thereof  that  the  individual  made 
an  impression.  He  enjoyed  a  recognized  place  in  the 
community  as  a  part  of  the  whole,  not  as  an  independent 
personality.      Reactionary  agitations  did   not  arise,   or 

^ Lamprecht,  "Deutsches  Städteleben  am  Schluss  des  Mittel- 
alters," p.  121;  Georg  Adler,  "Der  Kampf  gegen  den  Zwischen- 
handel" ("Die  Zukunft,"  1890,  Vol.  15),  pp.  548  seq.  August 
Oncken,  "Geschichte  der  National-ökonomie,  I,  pp.  129-132.  R. 
Kaiilla,  "Die  Lehre  vom  gerechten  Preis  in  der  Scholastik."  Z.  f.  d. 
ges.  Staatsw.,  edited  by  Bücher,  Vol.  60,   1904,  pp.  579-602. 


108  BONDx\GE  OF  MEDIEVALISM      [Ch.  IV 

if  they  arose,  were  put  clown  by  the  temporal  or  eccle- 
siastical authorities. 

§  23.  MoreLiheral  Trends  of  the  Middle  Ages.  1 :  Dante 
Alighieri  (1265-1321)^  was  the  philosopher-poet  of 
romantic  medioevalism.  In  "De  Monarchia"  he  con- 
sidered the  establishment  of  a  world  empire,  but  made 
the  Roman  people  the  medium  thereof,  and  looked  to 
the  emperor  to  renew  the  ancient  Roman  universal 
sovereignty."  The  relation  between  Pope  and  Emperor 
was  not  that  of  sun  and  moon,  nor  was  the  doctrine  of 
the  two  swords  applicable.  Constantine's  donation  [the 
supposed  historical  basis  of  the  temporal  power  of  the 
papacy]  was  likewise  null  and  void.  The  emperor  de- 
rived his  authority  from  God  and  was  thus  not  subject 
to  the  Pope.^  Dante,  loyal  to  the  Catholic  faith,  was 
imbued  with  a  modern  attitude  towards  economic  inter- 
ests, though  under  the  sway  of  the  romantic  appeal  of 
the  ancient  Roman  Empire. 

2:  William  of  Occam'*  (1270-1347)  proceeds  on  the 
basis  of  "natural  law."  Before  the  existence  of  the 
State  all  property  was  communal.  Natural  law  led 
humanity  by  way  of  contract  to  found  the  State;  and 
thereby  was  created  the  authority  of  government.     But 

'  On  this  period  see  Zorn,  "Zur  Geschichte  des  Verhältnisses  von 
Staat  und  Kirche  am  Ausgange  des  Mittelalters,"  Preussische 
Jahrb.,  Vol.  45,  IS.SO,  pp.  439-470.  Prutz,  "Staatengeschichte  des 
Abendlandes  im  deutschen  Mittelalter  von  Karl  dem  Grossen  bis 
auf  Maximilian,"  Vol.  2,  Berlin  1887. 

^  "De  Monarchia,"  libs.  I  and  II. 

3  "De  Monarchia,"  Hb.  III:  "Gomo  l'officio  del  monarca,  o-vvero 
deir  impero,  dijiende  immediatemente  da  Dio."  It  is  similar  in 
the  edition  of  1740:  "(Jualiter  officium  Monarch»,  sive  Imperii 
deiKiidet  a  Deo  immediate." 

*  "Disputatio  super  pra.4atis  ecclesiie  at(|ue  princijiibus  terrarum 
commissa,  temporibus  Bonifacii  VIII.  pout.  Rom.  scri])ta  sub 
forma  diahvi  inter  clcricum  et  militem  (about  1303)." 


§23]  THE  MIDDLE  AGES  109 

the  public  rights  are  invested  in  the  people  as  against 
the  ruler;  and  theirs,  too,  are  the  Church  rights  as 
against  the  Pope.  The  temporal  power  is  established 
through  the  people,  yet  its  source  rests  with  God  since 
it  is  based  upon  accord  with  the  divine  order. 

3:  Marsilius  of  Padua  and  the  Sovereignty  of  the 
People.  In  collaboration  with  his  friend,  John  Gian- 
done,  Marsilius  of  Padua  (d.  1328)  wrote  the  famous 
"Defensor  Pacis."  In  it  is  advocated  the  doctrine  of 
the  sovereignty  of  the  people.  All  political  power  is 
vested  in  the  people;  the  ruler  is  chosen  by  them,  and 
should  he  overstep  the  authority  vested  in  hiin  by  the 
people,  he  may  be  deposed.^  The  Church  is  subject 
to  the  temporal  authority  and  has  no  temporal  powers.^ 
The  temporal  power  is  derived  from  God;  there  is  no 
authority  superior  to  the   "legislator  humanus."^ 

Lupold  von  Bebenburg  is  another  exponent  of  the 
doctrine  of  the  sovereignty  of  the  people.  Hierynomus 
Balbus  appraises  critically  the  arguments  for  and  against 
the  independence  of  Emperor  and  Pope.  He  concludes 
that  the  papal  and  imperial  sovereignty  are  collateral 
and  independent,  and  extend  over  different  spheres  of 
influence.  The  iinperial  power  is  in  reality  conferred 
by  election,  the  coronation  being  but  a  formality  that 
confers  no  new  rights.  ^ 

4:  Nicholaus  Cusanus  (1401-1464),  whose  chief  work 
is  the  "Concordantia  Catholica,"  takes  an  independent 
position.  According  to  him  the  State  is  established  by 
the  voluntary   subjection   of   indi\iduals   through   con- 

1  I,  chaps.  3,  4,  6,  9,  12,  15,  IS. 

2  II,  chaps.  8,  9,  13,  17,  20,  28. 
MI,  chap.  21. 

^"DeCoronatione,"  pp.  16-38;  38-46;  58-64,  68-71.  It  was 
also  not  necessary  that  the  coronation  should  take  place  in  Rome, 
de  cor.,  pp.  71  seq. 


110  BONDAGE  OF  MEDIEVALISM      [Ch.  IV 

sensus  of  action.  The  monarch  is  the  representative 
of  the  collective  will  of  the  people.  The  Pope  is  urged 
to  restore  the  temporal  inheritance  of  St.  Peter  to  the 
Emperor,  and  to  place  the  Church  under  the  powerful 
protection  of  temporal  authority. 

5 :  The  writings  of  Niccolo  Machiavelli  (1469-1527) 
stand  apart  from  those  of  his  predecessors  alike  in  form 
and  content.  In  feeling  and  thought  he  no  longer  be- 
longs to  the  Middle  Ages,  but  is  the  issue  of  a  different 
phase  of  culture;  he  belongs  to  the  Renaissance,  and 
must  be  judged  and  appreciated  by  its  standards.  He 
is  the  Colleoni  of  politics.  In  his  "Prince"  he  portrays 
a  ruler  after  the  model  of  Cccsar  Borgia,  a  monarch 
who  acquires  control  over  a  servile  State  through  bold 
intrigue  and  determination.  Ethical  motives  are  disre- 
garded; whatever  makes  for  power  is  permissible.  In 
his  portrayal  of  brute  force,  of  self-seeking  ambition 
pushing  its  way  in  the  struggle  for  power,  Machiavelli 
shows  himself  a  brilliant  writer  and  a  master  of 
expression. 

The  "Prince"  was  written  to  serve  as  a  recommendation 
to  Lorenzo  de  Medici.  In  this  connection  it  was  unfor- 
tunate that  Machiavelli  had  ])reviously  expressed  his 
views  in  his  historical  work  u|)h()lding,  on  philosophical 
and  political  grounds,  the  constitution  of  the  ancient 
Roman  Republic  as  the  model  for  all  good  government, 
and  especially  for  the  city-republics  of  Italy.  To  every 
critic  of  Machiavelli  the  inconsistency  of  these  two  posi- 
tif^ns  is  pcrj^lexing,  and  leads  to  wide  diversities  of  opin- 
ion. A  ])ourgeois  moralil>',  (|uile  aside  from  time  or 
place,  would  unreservedly  condemn  Machia\elli;  for 
by  its  standards,  talent  would  be  of  no  a\ail  if  unsup- 
jjorlcd  by  good  inlcnlions.  Machi;i\clli  certainly  ex- 
iiibils  an  iin|)arallcl('(l  lack  of  principle,  a  shocking 
frankness  in   expressing  what  others  would   hardly  dare 


§23]  THE   MIDDLE  AGES  111 

to  think;  yet  the  serious  charge  against  him  is  his  con- 
temptible lack  of  jjrinciple  in  deserting  one  cause  for 
another;  and  that  for  adventitious  reasons.  The  his- 
torian comes  to  Machiavelli's  rescue,  and  suggests  that 
the  salvation  of  Italy  from  the  perils  of  the  day  seemed 
to  Machiavelli  to  require  the  drastic  measures  of  a  tem- 
porary despotism.  Thus  considered  the  "Prince"  be- 
comes a  patriotic  document.  The  historian  of  culture 
looks  upon  Machiavelli  as  a  classic  expression  of  his 
times,  as  the  morally  emancipated  man  of  the  Renais- 
sance for  whom  power  and  might  were  supreme,  and  in 
whom  were  combined  notable  failings.  The  student 
of  the  philosophy  of  law  recognizes  in  him  a  reversion 
to  ancient  views  in  which  the  ethical  ideal  had  not  yet 
been  awakened;  he  thus  becomes  representative  of  a 
transitional  civilization  that  had  freed  itself  from  the 
shackles  of  the  Church,  but  had  not  yet  assumed  the 
obligation  of  a  humanitarian  ethics. 


112  CIVIC   EMANCIPATION  [Ch.  V 


CHAPTER   V 

CIVIC   EMANCIPATION:    AND  THE  RISE  AND 
DECLINE  OF  "NATURAL  LAW" 

THE  REFORMATION  AS  A  STIMULUS  TO  INDIVIDUALITY.—  GRO- 
TIUS.— THE  REBELLION  AGAINST  TYRANNY.— LEGAL  PHILOSOPHY 
OF  THE  SEVENTEENTH  CENTURY:  (1)  HOBBES;  (2)  PUFENDORF; 
(3)  SPINOZA;     (4)  THOMASIUS.— LEGAL  PHILOSOPHY  IN  ENGLAND: 

(1)  LOCKE;  (2)  BENTHAM;  (3)  MILL,  AUSTIN.— LEGAL  PHILOSOPHY 
IN  FRANCE:  (1)  MONTESQUIEU;  (2)  ROUSSEAU;  (3)  DIDEROT;  (4) 
GODWIN.— LEGAL  PHILOSOPHY  IN  GERMANY:  (1)  LEIBNITZ;  (2) 
WOLFF;  (3)  FREDERICK  THE  GRE.\T.— MERCANTILISTS  AND  PHYSI- 
OCR.\TS:  (1)  THE  SYSTEM  OF  COLBERT;  (2)  QUESNAY  AND  OTHER 
PHYSIOCR.ATS.— THE  CLASSICAL  ECONOMISTS:  ADAM  SMITH,  RIC- 
ARDO (1)  INDUSTRIAL  DEVELOPMENT,  THE  ECONOMICS  OF  ADAM 
SMITH;  (2)  RICARDO;  (3)  SAY;  (4)  MALTHUS.— KANT.  FICHTE,  SCHO- 
PENHAUER: (1)  KANT— (a)  THE  HISTORICAL  POSITION  OF  KANT, 
(b)  KANT'S  ETHICS,  (c)  KANT'S  PHILOSOPHY  OF  LAW.  (d)  THE  ORIGIN 
AND  THE  PURPOSE  OF  THE  ST.\TE,  (c)  THE  PRESENT  SIGNIFICANCE 
OF  KANT'S  PHILOSOPHY;  (2)  FICHTE—  (a)  THE  POSITION  OF  FICHTE, 
(b)  FICHTE'S  PHILOSOPHY  OF  LAW.  (c)  FICHTE'S  PHILOSOPHY  OF 
ECONOMICS,  (d)  LAW  AND  CULTURE,  (o)  FICHTE  AS  A  STATESMAN; 
(3)  SCHOPENHAUER.— SCHELLING  AND  THE  HISTORICAL  SCHOOL: 
(l)SCHELLING;  (2)  OTHER  MEMBERS  OF  THE  HISTORICAL  vSCHOOL.— 
HEGEL  AND  THE  HEGELIANS:    (1)  HEGEL'S  PHILOSOPHY  OF  LAW; 

(2)  L.UV  AND  THE  HUMAN  WILL;  (3)  HEGEL'SDIALECTIC;  (I)  HEGEL'S 
CONCEPTION  OF  THE  STATE;  (5)  FUNDAMENTAL  LEGAL  IDEAS. 
PERSON,  PROPERTY,  INJURY,  CRIME;  ((i)  A  CRITICAL  VERDICT  OK 
IIEGEL;  (7)TIIIC  HI'.GICLLXNS.—  RIOCICNT  SYSTEMS  OK  LI':gAL  PIIILOS- 
OJ'HY:  (I)  STAHL;  (2)  TRENDELICNBURC".;  (3)  KRAUSE;  (I)AIIRENS; 
(5)  IllCUHAKT;    <(<)  DAIIN;    (7)  LASSON. 


§24]        STIMULUS  TO   INDIVIDUALITY  113 

§  24.  The  Reformation  as  a  Stimulus  to  Individuality. 
The  interest  of  the  historian  of  the  Reformation  is  di- 
rected to  the  conditions  that  made  possible  so  profound 
an  intehectual  readjustment;  to  such  an  interest  the 
series  of  underlying  changes  are  of  prime  importance. 
But  for  the  philosopher  the  significant  fact  is  the  cul- 
tural mission  of  that  intellectual  awakening.  The  Refor- 
mation inaugurated  not  merely  a  new  epoch,  but  the 
modern  spirit  itself  as  extending  to  and  finding  its  cul- 
mination in  our  own  day.  The  distinctive  characteristic 
of  the  Middle  Ages  may  be  said  to  be  the  bondage, 
social  and  spiritual,  of  the  individual;  by  contrast  the 
period  of  the  Reformation  is  characterized  by  the  eman- 
cipation of  classes  and  individuals.  A  survey  of  this 
process  of  emancipation,  unique  in  history  and  extending 
over  four  centuries,  discloses  the  limitations  and  inad- 
equacy of  the  materialistic  view  of  history;  for  it  is  ever 
a  great  idea  that  vitalizes  and  fertilizes  the  soil  in  which 
important  econor^^c  changes  mature.  It  must  be  con- 
ceded that  circTfthstances  ■ —  that  is,  the  prevalent  eco- 
nomic and  cultural  state  of  affairs  —  must  be  favorable 
to  the  growth  of  the  new  idea;  but  the  decisive  condi- 
tion ever  remains  the  creation  and  formulation  of  the 
attitude  itself.  Intellectually  and  spiritually  the  pro- 
cess of  emancipation  began  with  the  Reformation;  the 
French  Revolution,  proclaiming  the  rights  of  man, 
developed  it  formally;  and  its  economic  and  social 
consummation  was  reserved  for  the  social-ethical 
movement  at  the  close  of  the  nineteenth  century. 

In  the  sixteenth  century  the  Teutonic  spirit  revolted 
against  the  yoke  of  Rome.  It  was  by  virtue  of  the  popu- 
lar appeal  in  Luther's  language  and  teachings,  and  by 
virtue  of  the  Germanic  ^  spirit  in  his  mental  attitude, 

^  Harnack,  "Das  Wesen  des  Christentums,"  p.  177:  "As  the 
oriental  phase  of  Christianity  is  called  the  Greek,  and  the  mediaeval 


114  CIVIC  EMANCIPATION  [Ch.  V 

that  he  won  adherents  to  the  new  cause.  The  tutelage 
of  Rome  was  becoming  oppressive,  and  the  corruption 
and  decadence  of  church  officials  were  peculiarly  objec- 
tionable to  Teutonic  feelings.  The  Roman  faith  was  made 
to  sufifer  for  the  faults  of  its  priests.  The  weaknesses  of  the 
emperors  brought  on  the  destruction  of  the  ancient  Roman 
empire,  and  the  sins  of  the  popes  that  of  the  new. 

In  this  connection  attention  may  be  called  to  the  influ- 
ence of  "illusion"  in  history;  for  it  seems  to  be  the  case 
that  the  issues  of  great  historical  movements  are  not 
the  ends  proposed,  but  the  fulfillment  of  a  cultural  mis- 
sion which  they  undesignedly  serve.  The  deliberate 
purpose  of  the  Reform.ation  was  the  reform  of  religion  — 
an  end  imperfectly  attained  in  Teutonic  countries,  and 
hardly  at  all  in  those  under  Roman  dominion.  The  cul- 
tural mission  of  the  Reformation  was  to  vitalize  individ- 
ual freedom,  and  this  end  was  indeed  first  achieved  by 
the  Reformation.  The  Reformation  broke  the  power 
of  the  Church  by  placing  the  individual  in  direct  rela- 
tion with  God.  Through  Luther's  translation  of  the 
Bible,  the  word  of  God  was  made  available  to  the  people; 
celibacy  was  abolished;  the  overweening  dominance  of 
the  priests  was  swept  aside;  men  were  liberated  from 
the  oppression  of  the  Church;^  the  dominion  of  the  tem- 
poral ])ower  was  restored. 

occidental  phase  the  Roman,  so  one  may  call  the  Protestant  phase 
Germanic;  and  this  despite  Calvin,  who  indeed  was  a  disciple  of 
Luther  and  whose  influence  has  been  most  permanent  not  among 
ihe  Latin  races  but  among  the  Knglish,  Scotch,  and  Dutch."  See 
aho  Laurent,  "La  feodalitc  et  reglise,"p.  45.''):  "As  a  man  of  action 
Zwingli  is  inferior  to  Luther,  for  the  latter  had  that  admirable 
sense  that  distinguishes  practical  men  —  the  sense  for  the  possible. 
Zwingli  demanded  of  humanity  more  than  it  was  able  to  give  in 
the  sixteenth  cnitnr\/' 

'  Iltirtuick,  "Das  Wesen  des  Christentums,"  ]).  172.  "Protestan- 
tism looks  upon  the  Gospel  as  so  simple,  divine,  and  therefore  truly 


§25]  HUGO    GROTIUS  115 

§  25.  HugoGrotius.  Grotius  (1583-1645)  maybe  re- 
garded as  the  Descartes  of  legal  philosojihy.  As  the 
Cartesian  "cogito  ergo  sum"  became  the  ]ioint  of  de- 
parture of  rationalistic  philosophy,  so  the  establish- 
ment of  government  and  law  upon  reason  made  Hugo 
Grotius  the  founder  of  an  independent  and  i)urely  ration- 
alistic system  of  natural  law.^  The  conception  of  "nat- 
ural law"  was  not  wholly  novel  but  appeared  vaguely 
in  the  later  Middle  Ages.  According  to  Grotius,  "natural 
law"  is  unrelated  to  the  will  and  existence  of  God;^  for 
the  State  is  a  human  institution  and  is  based  upon  con- 
tract.^ Law  is  a  human  creation  and  arises  from  the 
social  impulse  —  as  Aristotle^  had  indicated  —  and  from 

human,  that  it  is  most  assured  of  acceptance  when  free  to  make  its 
own  appeal,  and  produces  upon  all  essentially  the  same  experi- 
ences and  convictions."  See  also  Bergemann,  "Ethik  als  Kultur- 
philosophie," p.  199. 

'On  "natural  law"  in  general  see  Bergbohm,  "Jurisprudenz  und 
Rechtsphilosophie,"  I;  Jcllinek,  "Allgemeine  Staatslehre,"  pp.  314- 
323;  Stammler,  "Wirthschaft  und  Recht,"  pp.  169-188;  "Die 
Lehre  von  dem  richtigen  Rechte,"  pp.  93  seq. 

*"De  jure  belli  ac  pacis."  Proleg.:  "Et  haec  quidem  quae  iam 
diximus,  locum  haberent  (i.e.,  the  existence  and  the  compelling  power 
of  natural  law)  etiamsi  daremus,  quod  sine  summo  scelere  dari 
nequit,  non  esse  Deum,  aut  non  curari  ab  eo  negotia  humana." 
"De  jure  belli  ac  pacis,"  I,  1,  10:  "Est  autem  jus  naturale  adeo 
immutabile,  ut  ne  a  Deo  quidem  mutari  queat." 

^1,4,  7  seq.:  "Notandum  est  .  .  .homines  .  .  .  sponte  adductos 
experimento  infirmitatis  familiarum  segregum  adversus  violentiam, 
in  societatem  civilem  coiisse." 

^Grotius  frequently  refers  to  Aristotle,  still  more  frequently  to 
Cicero,  and  occasionally  to  Seneca.  Grotius  does  not  consistently 
adhere  to  the  social  impulse  as  the  basis  for  the  formation  of 
the  State.  For  example,  in  the  following  definition,  which  shows 
the  direct  influence  of  Cicero:  "The  State  is  a  perfect  association 
of  free  men,  established  for  the  benefits  of  law  and  the  common 
welfare." 


116  CIVIC  EMANCIPATION  [Ch.  v 

reason,  that  is,  from  the  rational  nature  of  man.i  For 
Grotius  the  formal  philosophical  problem  and  end  is  to 
determine  the  source  of  the  law  of  nations;  for,  as  this 
is  not  due  to  positive  legislation,  its  basis  must  be  found 
in  "natural  law."  The  basis  of  the  doctrine  of  "natural 
law"  is  that  the  origin  of  the  State,  and  of  all  that  i? 
brought  into  being  by  the  State,  is  due  to  contract.  This 
assumption  carries  with  it  any  and  all  political  positions 
that  one  may  desire  to  establish,  and  was  frequently  used 
to  establish  the  sovereignty  of  the  people. 

In  his  science  of  justice  Grotius  makes  a  distinction 
between  two  orders  of  justice;'-  the  one  division  of  legal 
norms  refers  to  legal  relations  of  parity  between  equals, 
and  the  other  to  the  legal  relations  of  ruler  and  subject.^ 
In  judging  the  position  of  Grotius,  we  must  bear  in  mind 
that  his  purpose  was  to  prove  that  a  law  of  nations  exists. 
He  was  thus  led  to  accept  the  postulate  of  "natural  law," 
since  there  was  no  recognized  positive  law  between 
nations.  He  attempted  to  prove  his  case  by  a  study  of 
the  legal  issues  of  war;  which  appeared  in  the  very  title 
of  his  work,  "De  Jure  Belli  ac  Pacis."  This  approach 
influenced  the  character  of  his  entire  presentation.  The 
problems  of  legal  philosophy  and  of  legal  science  were 
not  considered  in  themselves,  but  in  their  bearing  upon 
the  legal  aspects  of  war,  its  justification  and   its  pro- 

'  Particularly  I,  1,  10,  12. 

^"Dc  jure  belli  ac  pacis,"  I,  1,  3:  "Sicut  autem  societas  alia  est 
sine  iiuequalitate,  ut  inter  fratres,  cives,  amicos,  federatos:  alia 
injequalis  .  .  .  ut  inter  patrem  et  liberos  .  .  .:  ita  justuni  aliud 
est  ex  aequo  inter  se  vivcntium,  aliud  eius  qui  regit  et  qui  regitur, 
qua  tales  sunt:  quorum  hoc  jus  Rectorium,  illud  yEquatorium  .  .  . 
vocabimus." 

^  Upon  the  meaning  given  to  punishment  by  drotius  ("malum 
passionis  c|U(xl  infligitur  ob  malum  actionis"),  see  Bcrolzhcimer, 
"Rcchlsphil.  Studien,"  pp.  86-92;  and  "Die  Kntgeltung  im  Straf- 
reciile,"  i)p.  13Ü-133. 


§251  HUGO    GROTIUS  117 

cedure.  The  plan  pursued  was  first  to  determine  what 
constitutes  war,  and  then  to  consider  the  further  ques- 
tion as  to  what  constitutes  law  as  thus  applied. 

It  must  not  be  inferred  from  the  prominence  of  war 
as  the  basis  of  legal  principle  that  Grotius  derives  the 
nature  of  law  from  its  violation,  that  is,  a  positive  con- 
cept from  its  infringement  or  negation.^  Schopenhauer,- 
reflecting  his  antagonism  to  Hegel,  repeatedly  sets  forth 
that  wrong  is  the  fundamental,  primary,  positive  con- 
cept, and  that  the  concept  of  right  arises  from  it  merely 
as  the  negation  or  absence  of  wrong;  and  he  refers  for 
support  to  "the  first  exposition  of  the  concept  as  given  by 
Hugo  Grotius,  the  founder  of  philosophic  jurisprudence: 
'Jushic  nihil  aliud,  quam  quod  justum  est,  significat,  idque 
negante  magis  sensu,  quam  aiente,  ut  jus  sit,  quod  in- 
justum  non  est.'  "^  But  in  Grotius  this  passage  is  imme- 
diately followed  by  the  statement:  "Est  autem  injustum 
quod  naturae  societatis  ratione  utentium  repugnat."  If 
this  expression  occurred  at  the  outset  of  a  systematic 
work  devoted  to  the  philosophy  of  law,  it  would  be  fair 
to  conclude  that  the  author  derived  the  concept  of  right 
from  that  of  wrong.  But  in  reality  the  statement,  as  it 
occurs  in  Grotius,  forms  the  transition  from  the  defini- 
tion of  the  concept  of  war  to  the  consideration  of  justice. 
According  to  Grotius  "jus"  has  a  threefold  significance: 
first  as  "justum,"  that  which  is  just;  second  as  "qualitas 
moralis  personam  competens  ad  aliquid  juste  habendum 

^  Geyer,  "Geschichte  und  System  der  Rechtsphilosophie  in  Griind- 
zügen,"  p.  31:  "Grotius  thus  begins  with  the  concept  of  right  in 
the  objective  sense.  He  says,  'That  is  lawful  which  is  not  unlawful, 
that  is  unlawful  whichJ3yLitsJiature.J.scoatrary  to  the  interests  of 
reason  and  society.'  Accordingly  what  makes  rational  and  social 
relations  impossible  —  such  as  conflict  and  strife  —  is  wrong." 

2  See  §33,  C. 

^  Schopenhatier:  "Preisschrift  über  die  Grundlage  der  Moral," 
Vol.  3,  p.  598,  §  17. 


118  CIVIC  EMANCIPATION  [Cii.  V 

vel  agendum,"  that  is,  legal  right  in  the  concrete  sense, 
or  claim;  third  as  "lex,"  positive  law,  as  constituted 
law.  "Lex"  must  here  be  understood  in  its  broadest 
sense  as  "rectum."^  The  "jus  naturale"  comes  under  the 
third  meaning  of  "jus,"  and  forms  the  decisive  factor 
in  the  conception  and  nature  of  law.  But  the  "jiis-joat- 
urale"  Grotiu^s  derives^rom  the  social  impulses  of  man. 
Whatever  conforms  to  this  social  impulse  is  right ;  what- 
ever opposes  it  is  wrong.  Wrong  consists  in  that  which 
disturbs  or  interferes  with  the^ätin^M_aJi3Ik2ciaLhar- 
mony.  Hence  to  Grotius  the  positive  conception  is  the 
social_unity  or  solidarity  and  the  justice  andTlaw  in 
accord  with  it.  Injustice  and  wrong  become  the  true 
negatives,  and  like  all  that  deviates  from  ihe.jiörmal, 
their  assertiveness  makes  them  conspicuous  just  because 
they  form  a  departure  from  the  social  harmony  of  life. 

§  26.  The  Rebellion  against  Tyranny.  For  three 
centuries  the  leaders  of  the  movement  of  enlightenment 
growing  out  of  the  religious  struggles  in  France  and 
Scotland  in  the  sixteenth  century,  who  preached  the 
right  of  active  rebellion  and  even  of  assassination  against 
tyrannical  rulers,  have  borne  the  name  of  anti-monarch- 
ists ("monarchomachs").^  The  vogue  of  the  appellation 
illustrates  the  ready  acceptance  of  an  apt  phrase  even 
by  scholars.  Yet  it  is  somewhat  misleading  and  fails 
to  express  the  inherent  nature  of  the  movement.  The 
hostility  is  directed  not  against  the  ruler  but  against 
the  tyrant;  so  that  anti-tyrannical  ("tyrannomach") 
wf)uld  be  the  more  a])])r()i)riate  term.     The  monarch  is 

'  Compare  the  use  made  by  Piifriulorf  of  the  word  "recte" 
("De  Jure  Naturae  et  Gcntimii,"  1,  1,  20). 

^Gierke,  "Johannes  Altliusius,"  15reslau  IXSO,  p.  ;},  note  3, 
comments  (the  expression  is  derived  from  Guil.  Uarclaius  (Barclay): 
"De  re^Mio  ct  retiali  potestate  adversus  Huchananuni,  Brutum, 
Bouclu  riiini  il    rilii|iii)s  Mmuuu  hiniUK  Iids,"  lihii  sex,   ItJOO. 


§26]       REBELLION  AGAINST  TYRANNY         119 

distinguished  from  the  tyrant;  the  tyrant  is  the  ruler 
who  oppresses  the  country  and  the  people,  the  royal 
exploiter,  the  despot.^  The  Reformati(Hi  made  war 
upon  the  exclusive  possession  of  men's  souls  by  the 
Church;  "tyrannomachs"  made  war  upon  the  enslave- 
ment of  men's  bodies  by  their  temporal  masters;  and 
in  this  aspect  of  the    campaign  lay  its  cultural  mission. 

Two  parties  appear  among  the  reprcsentiitives  of  the 
"tyrannomachs":  the  clerical  or  Jesuitical,  eager  to 
break  the  tyrannical  autocracy  in  the  interests  of  the 
Church;  and  the  democratic,  striving  for  the  emanci- 
pation of  the  people.  Both  parties  find  support  in  the 
same  authorities,  partly  in  Scripture,  and  partly  in 
human  reason.  By  both  the  rights  of  the  people  are 
formulated  substantially  in  the  same  terms,  though 
their  arguments  differ  in  detail. 

The  central  doctrine  of  the  political  philosophy  of 
the  "tyrannomachs"  is  the  principle  of  the  sovereignty 
of  the  people.  While  this  idea  was  frequently  advanced 
in  ancient  times,  and  was  well  developed  in  "the  Middle 

1  Thus  Bodin,  in  "Les  six  livres  de  la  Republiquc,"  in  Book  II, 
chap.  Ill,  devotes  a  chapter  to  "La  monarchie  Royale,"  and  in  chap- 
ter 4  considers  in  contrast  thereto  "La  monarchie  tyrannique"; 
this  he  defines  (p.  211)  as  "a  monarchy  in  which  the  monarch  vio- 
lates the  laws  of  nature,  abuses  the  liberty  of  free  subjects  as  of  his 
slaves,  and  the  property  of  others  as  well  as  his  own."  (p.  212):  "But 
the  most  marked  distinction  between  the  king  and  the  tyrant  is 
that  the  king  obeys  the  laws  of  nature  and  the  tyrant  runs  counter 
to  them."  See  also  pp.  212-218.  In  chapter  5  the  question  is  dis- 
cussed as  to  "whether  it  is  legitimate  to  attack  the  person  of  the 
tyrant  and  after  his  death  to  annul  and  abrogate  his  ordinances." 
Althusius,  in  chapter  38,  pp.  650  seq.,  of  his  "Politica,"  discusses 
some  remedies  against  tyranny:  "Tyranny  is  therefore  contrary 
to  a  right  and  just  administration."  p.  651:  "A  tyrant  therefore 
is  one  who  by  violating  his  oath  of  faith  and  religion  attacks  and 
breaks  the  ties  and  foundations  of  the  body-politic."  On  pp.  652- 
658,  the  several  kinds  of  tyranny  are  then  distinguished. 


120  CIVIC  EMANCIPATION  [Ch.  V 

Ages,  its  use  to  further  political  revolution,  and  as  a 
text  from  which  to  preach  the  destruction  of  tyrants, 
was  reserved  for  more  modern  times.  The  religious 
foundation  of  the  doctrine,  characteristic  of  medieeval- 
ism,  is  retained;  yet  at  the  same  time  it  is  supplemented 
by  arguments  derived  from  the  newer  doctrine  of 
"natural  law."  The  two  tendencies  unite  in  this 
transitional  period:  the  Bible  is  referred  to  for  support, 
but  the  appeal  is  to  reason;  the  evidence  of  faith  gradu- 
ally recedes,  and  that  of  theoretical  principle  comes 
forward. 

It  will  not  be  necessary  to  present  the  views  of  the 
several  "tyrannomachs."  The  important  men  of  the 
period,  in  addition  to  Junius  Brutus,  were  Bodin  and 
Althusius.  Gierke  ^  regards  Althusius  as  the  direct 
precursor  of  Rousseau,  and  thus  makes  him  an  indirect 
influence  in  bringing  on  the  French  Revolution;  but 
this  view  has  been  contested.  Junius  Brutus,-  in  his 
"Vindicia?  contra  Tyrannos,"  discusses  the  right  of 
resistance  against  tyrants,  and  defends  it  on  the  basis 
of  casuistic  and  comprehensive  arguments.  The  service 
of  BoDiN  (1530-1597)  for  philosophy  lies  in  his  analysis  of 
the  conception  of  sovereignty  as  the  distinctive  char- 
acteristic of  the  State.  To  him  "sovereignty  is  the 
highest,    most    permanent,    milimited,    and    hence    in- 

^  Gierke,  "Johannes  Althusius,"  p.  7(),  regards  AUhusius  as  the 
founder  of  tlie  theory  of  the  social  contract.  In  opposition  thereto, 
see  Jellinek,  "Allgemeine  Staatslehre,"  p.  1S3.  Liepmann,  "Die 
Recht s])hilosophie  des  Jean  Jactpies  Rousseau,"  p.  22,  holds  that 
Rousseau  showed  clearly  the  inlluence  (jf  Althusius. 

^Junius  liriitus  was  formerly  regarded  as  the  pseudonym  of 
lliilurt  Languet.  It  is  now  held  that  the  author  of  the  "Vindiciae 
contra  Tyrannos"  is  I)u  TMessis-Mornay.  The  proof  of  this  was  fur- 
nished \)y  Lassen,  "Die  Vindici;e  contra  Tyrannos  des  angeblichen 
Sl«'|jhanus  Junius  Hrutus,"  Munich  1S,S7,  Silzungsherichte  der 
bayer.  Akademie  der  Wissenschaften,  1S.S7,  2,  pj).  2 If)  242. 


§26]       REBELLION  AGAINST  TYRANNY         121 

divisible  power,  com])rising  the  entire  State,  and 
permeating  all  its  functions.  Such  functions  are  the 
power  of  making  laws  without  being  bound  by  laws; 
the  right  to  declare  war;  the  deliverance  of  juridical 
decisions  as  a  last  resort;  and  the  right  of  pardon, 
taxation,  coinage.  The  power  of  the  State  is  limitless, 
and  thus  not  divisible."  ^  Bodin  properly  emj^hasizes 
the  close  connection  between  public  and  private  au- 
thority. He  makes  the  existence  of  personal  rights 
the  basis  of  the  power  of  the  State:  "II  n'y  a 
point  de  chose  publique  s'il  n'y  a  quelque  chose  de 
propre."  ^ 

In  the  systematic  discussion  of  the  theory  of  State  and 
society  by  Althusius  (1557-1638),  he  distinguishes 
between  the  contract  of  alliance,  by  which  a  community 
is  formed,  and  the  contract  of  sovereignty,  which  forms 
the  foundation  of  public  authority  and  of  the  coercive 
nature  of  law.^  The  latter  has  the  quality  of  a  public 
decree.  The  people,  like  every  associated  group, 
"universitas,"  has  the  right  to  place  at  its  head  execu- 
tives and  to  confer  upon  them  full  authority  while  yet 
limiting  it.  When  the  people  exercise  such  privilege, 
the  representatives  whom  they  nominate  under  this 
contract  of  sovereignty  become  merely  administrators 
of  the  governmental  authority  belonging  to  the  com- 
munity.* It  is  only  by  virtue  of  such  a  public  com- 
mission of  the  authority,  which  belongs  wholly  to  the 
people,   that   a   legitimate   government   and   regulation 

^Stintzing,  "Geschichte  der  deutschen  Rechtswissenschaft," 
1884,  II,  pp.  34  seq.  Bodin,  I,  10:  "Des  Vrayes  Marques  de  la 
Souverainete."  Five  essential  traits  ("marques")  of  sovereignty  are 
there  portrayed. 

M,  1. 

3  "Politica,"  chaps.  I,  5,  10,  18. 

^"Politica,"  chap.  18,  §§  1-14. 


122  CIVIC   EMANCIPATION  [Ch.  V 

can  be  maintained.^  The  government  should  never 
become  absolute,  but  always  be  limited  by  consideration 
for  the  people,  the  true  supreme  and  authoritative 
master.-  By  this  means,  will  the  sovereignty  of  the 
people  be  strictly  conserved,  and  their  privileges 
maintained. 

§  27.  Legal  Philosophy  of  the  Seventeenth  Century. 
1 :  HoBBES.  The  evidence  of  men's  distrust  of  one 
another  is  everywhere  apparent.  Though  at  peace  with 
their  neighbors,  countries  guard  their  frontiers  and  cities 
by  troops,  walls,  gates,  and  sentinels;  even  in  the  interior, 
where  law  and  justice  prevail  and  punishment  awaits 
evil-doers,  the  citizens  go  about  armed.  While  States 
and  individuals  thus  show  their  fear  and  distrust,  their 
theorie's,  contradicting .  their  actions,  refuse  to  admit 
fear  as  the  motive  of  human  conduct.  "Studio  contra- 
dicendi  aliis,  contradicunt  sibimet  ipsis  ..."  are  the 
words  of  Hobbes  (1588-1679)  addressed  to  the  reader 
in  the  preface  to  his  "De  Cive."  The  establishment  of 
government  cannot  be  derived  from  the  social  nature 
of  man.  The  motive  that  has  brought  men  together 
socially  must  be  sought  in  their  practical  intercourse.^ 
Kach  individual  regards  his  own  interest  and  advantage; 
and  self-interest  alone  is  resi)onsible  for  social  institutions.* 

I'Tolitica,"  chap.  IS,  §§  l.^)-31,  84,  104,  123  seq.,  and  chap. 
19  §  2  seq.;  chap.  38,  §§  121-129. 

2  "I'<jliiica,"chap.  IS,  §§  28-46,  105,  lOO;  chap.  19,  §  2  hc(i.;  chap. 
38,  §§  121  seq.,  128-1 30. 

^"Dc  Cive,"  I,  2:  "(Jiio  .  .  .  coiisilio  homines  congregentur, 
ex  iis  c<)gn(jscilur  qiue  faciunt  congrcgati." 

"•"De  Cive,"  I,  2:  "Onmis  igitur  societas  vel  commodi  causa,  vcl 
gloria.*,  hoc  est,  siii,  non  sociorum  amorc  contrahitiir.  .  .  .  Slatuen- 
(ium  igiliir  est,  origiiiem  niagnanim  el  dinl  nrnaruni  societatum  nou 
a  nniliia  hoininuni  I)eiie\'(jlciHi<i,  st'cl  a  niulin)  niclu  cxstilisse." 

Upon  "I'ear  as  Vroivcl'um,"  Lco)iar(lo  da  Vinci  has  thus  expressed 
himself:    "As  enmity  is  a  menace  to  life,  so  fear  is  a  security." 


§271        THE  SEVENTEENTH  CENTURY  123 

L.ife  is  the  choicest  of  all  possessions,  and  to  minister  to 
its  needs  is  the  chief  purpose  of  man ;  ^  hence  the  general 
prerequisite  of  all  self-seeking  activity  is  protection 
and  security,  "pax  quarenda."  ^  This  fundamental 
requisite,  due  to  fear,  leads  mankind  from  the  troublous 
state  of  nature,  in  which  every  man  preys  upon 
the  other,  "homo  homine  lupus,"  and  every  man's 
hand  is  raised  against  his  neighbor,  "bellum  omnium 
contra  omnes,"  up  to  the  civic  state,  whose  central 
function  is  to  provide  security  by  keeping  faith,  "pacta 
servanda  prsestanda."  ^ 

The  State  does  not  deprive  the  indi\'idual  of  his  natural 
freedom,  but  merely  relieves  the  terrors  and  anxieties 
incident  to  savagery ;  it  maintains  a  comprehensive  police 
system.  Yet  in  so  holding  Hobbes  overlooks  the  fact 
that  the  State,  while  notably  lessening  the  uncertainties 
of  primitive  conditions,  introduces  other  artificial  perils 
of  legally  regulated  intercourse.  Hobbes'  philosophy  of 
law  reflects  his  personal  view  of  life.  His  deep  distrust 
of  human  nature  is  increased  by  a  keen  observation 
of  human  frailties  and  susceptibilities.  He  particularly 
scores  envy  and    vanity:     whatever    one    man    has    or 

"Leonardo  da  Vinci  der  Denker,  Forscher  und  Poet,"  Marie  Herz- 
feld, Leipzig  1904,  p.  120. 

See  also  "Leviathan,"  chap.  13  (De  religione):  "Atque  hinc 
fortasse  erat,  quod  veterum  Poetarum  aliquis,  Deos  primos  a  Timore 
factos  esse  dixerit." 

'"De  Cive,"  \,  7:  "Neque  enim  Juris  nomine  aliud  significatur 
quam  libertas,  quam  quisque  habet  facultatibus  naturalibus  secun- 
dum rectam  rationem  utcndi.  Itaque  Jiiris  naturalis  fundamentum 
primum  est,  ut  quisque  vitam  et  membra  sua  quantum  potest  tueatur." 

"Leviathan,"  chap.  13:  "Passiones  quibus  homines  ad  pacem 
perduci  possunt,  sunt  Metus,  prsesertim  vero  Metus  Mortis 
violentse." 

2  "De  Cive,"  L  15;    11,2;    111,31;    "Leviathan,"  chaps.  13,  14. 

^"Leviathan,"  chap.  Ifv,   "Le  Corps  Politique,"  I,  chap.  3,  1. 


124  CIVIC  EMANCIPATION  [Ch.  v 

strives  for,  the  rest  covet;  ^  "Ubi  enim  non  praecessit 
Pactum,  ibi  Jus  nullum  est  translatum,  sed  omnia 
omnium  sunt."  -  Such  a  conception  of  government 
and  law  lea\es  no  place  for  the  reserved  rights  of  the 
citizen.  The  State  is  an  institution  for  protection,  and 
exercises  its  protective  functions  as  completely  as 
power  is  concentrated  in  its  hands.  Accordingly,  all 
privileges  and  powers  must  be  transferred  to  the  State 
by  contract;  for  the  State  must  rule  absolutely  and, 
like  the  Leviathan,  encompass  all  living  things.  Such 
is  the  demand  of  despotism  exercised  in  the  interests 
of  subjects  whose  welfare  is  the  conscientious  concern 
of  the  ruler. ^ 

2:  PuFENDORF.  Hobbes  marks  a  step  backward  in 
the  history  of  civic  emancipation.  Samuel  von  Pufen- 
DORF '*  (102.3-1694)  aims  to  combine  the  views  of  Hobbes 
and  Crotius,  yet  inclines  to  the  position  of  the  former. 
According  to  Grotius  the  social  impulse  urges  men  to 
socialize  their  condition,  to  found  a  State  and  to  develop 
law;  according  to  Hobbes  it  is  fear  of  mutual  exter- 
mination that  drives  men  from  the  troublous  primitive 
condition  to  the  security  of  civic  order.  Pufendorf 
anal>ses  man's  natural  disposition  or  nature,  and  finds  a 
strong  natural  egoism  antagonizing  his  social  im]iulses;^ 
hence  the  social  impulse  cannot  be  accepted  unre- 
servedly as  giving  rise  to  the  State,"  especially  as  man 
is  efjually   endowed   witii    ant -social    inclinations:     "in 

»"DcCivf,"  1,  O;    I,  2. 

-"Leviathan,"  chap.  1.'"). 

'  "De  C'ive,"  chaps.  10  scq.  "Lc  Corps  Politiquc,"  I,  chajx  2;  II, 
chap.  '.». 

'"I)c  Jure  Nalma'  el  (knllimi,"  hl)ri  octo,  1072.  "De  Officiü 
Hominis  el  Civis,"  lOUIi.  Aiscj  works  noted  by  E.  Landsberg,  "Ge- 
schichte der  dentschcn  Reclilswissenscliaft,"  III,  p.  19. 

'  "De  Jure  Na(uia-  el  (  .cnliiini,"  I,  \1 1,  ciiap.  1 ,  §  2. 

»"De  Jure  Nat.,"  I,  \  ll.diap.  1,  §  :>. 


§27]        THE  SEVENTEENTH   CENTURY  125 

homine  multa  sunt  vitia,  civilem  societatem  perturban- 
tia."  ^  Nor  is  necessity  an  adequate  ground  for  the 
formation  of  the  State j^  it  is  the  helplessness  of  man, 
his  exposure  to  the  manifold  perils  of  primitive  con- 
ditions, and  his  desire  to  avoid  future  ills,  that  consti- 
tute the  decisive  factor.^  In  place  of  Hobbes'  motive 
of  fear,  Pufendorf  advances  concern  for  the  future.^ 
While  Hobbes  regards  the  State  as  an  instrument  of 
protection.  Pufendorf  regards  it  as  a  preventive  alliance; 
the  distinction,  however,  is  not  a  radical  one.  Yet 
Pufendorf  shows  a  sociological  insight  absent  in  his 
followers;  for,  contrary  to  the  usual  presentation  of 
the  doctrine  of  "natural  law,"  the  foundation  of  the 
State  is  not  derived  by  Pufendorf  from  the  action  of 
the  individual,  but  from  the  family,  the  "patres  familias," 
uniting  together.''  While  following  Hobbes  in  his  view 
of  the  origin  of  "natural  law,"  Pufendorf  is  opposed  to 
him  in  other  matters.  He  regards  the  State  as  the  result 
of  a  series  of  contracts;  such  as  a  contract  of  alliance 
in  the  interests  of  socialization;  and  a  contract  for  the 
constitution  of  the  State,  which  in  turn  consists  of  the 

^  "De  Jure  Naturae,"  I,  VII,  chap.  1,  §4:  To  the  "avaritia," 
"superbia,"  "crucleUtas,"  "Deorum  negligentia,"  "ambitio,"  men- 
tioned by  Sallust,  Pufendorf  adds,  "Ineradicable  remembrance  of  an 
injury  suffered,  and  fierce  vengeance"  ("Accedit  vivacissimainjuria- 
rum  memoria  et  vindictae  ardor"). 

2  "De  Jure  Nat.,"  I,  VII,  chap.  1,  §  6. 

3  "De  Jure  Nat.,"  I,  VI I,  chap.  1,  §7:  "Genuina  igitur,  et  princeps 
causa,  quare  patresfamilias,  deserta  naturali  libertate,  ad  civitates 
constituendas  descenderint,  fuit,  ut  prsesidia  sibi  circumponerent 
contra  mala,  quae  homini  ab  homine  imminent." 

^  "De  Jure  Nat.,"  I,  VII,  chap.  1,  §7:  "Conspirant  nobiscum,  qui 
causam  civitatum  metum  statuunt;  per  quem  hautquidquam  intel- 
ligitur  perturbatio  trepidantis  et  consternati  animi,  sed  quaevis 
praecautio  futuri  mali."  See  also  De  Jure  Nat.,"  I,  VII,  chap.  2,  §§ 
1-5. 

5  "De  Jure  Nat.,"  I,  VII,  chap.  1,  §§  6-12. 


126  CIVIC  EMANCIPATION  [Cii.  V 

contract  for  the  constitutional  form  of  government ; 
and  again  the  contract  providing  for  the  subjection  of 
the  governed  to  the  governing  classes.^  The  last, 
according  to  Pufendorf,  is  not  a  one-sided  contract, 
investing  the  State  with  all  the  rights  of  the  individual, 
but  a  mutual  contract;  it  insists  equally  upon  the  duty 
of  the  governing  classes  to  care  for  the  common  weal, 
and  thus  constitutes  a  moderate  absolutism.'- 

Pufendorf's  ethics  is  essentially  theological;  the  will 
of  God  determines  what  is  good  and  what  is  bad.^ 
Pufendorf's  relation  to  Grotius,  as  represented  in  his 
exposition  of  the  doctrines  of  natural  law,  was  similar 
to  that,  in  a  later  period,  of  Wolff  to  Leibnitz.  He 
developed  the  system  for  which  Grotius  laid  the  founda- 
tions; but  in  his  hands  Grotius'  philosophy  of  law  lost 
through  his  utilitarian*  and  theological^  tendencies. 
As  is  commonly  true  of  conventional  and  superficial  exposi- 
tions, Pufendorf's  philosoph}^  of  law,  despite  its  lesser 
originality,  found  popular  fa\or  and  maintained  its 
vogue  for  nearly  a  century. 

»  "De  Jure  Nat.,"  I,  VII,  chap.  2,  §§  4-13. 

It  may  here  be  noted  that  the  distinction  made  by  Rousseau 
between  "la  volonte  generale"  and  "la  volonte  de  tons"  is  found 
in  Pufendorf,  "De  Jure  Naturae,"  VII,  2,  8:  "What  therefore  the 
individual  citizens  desire,  that  the  people  as  such  docs  not  desire; 
and  what  the  individual  citizens  do,  is  not  to  be  regarded  as  the 
action  of  the  people;   and  vice  versa." 

2  "De  Jure  Nat.,"  VII,  2,  8  seq.;  "De  Officio  Hominis  et  Civis," 
I,  II,  chap.  11,  §  3;  "Generalis  lex  summorum  impcrantium  est  hajc: 
Salus  populi  stiprema  lex  esto." 

3  "De  Jure  Nat.,"  I,  1,  chap.  0,  §  9;  "DeOllic.  Horn,  ct  Civis,"  I, 
1,  chap.  2,  §§  If).  See  also  ZimnirrnuDni,  "Das  Rechtsprinzip  bei 
Leibniz,"  Vienna  lS.'i2,  p.  3. 

*  "De  Jure  Nat.,"  1,  II.cli.ip.  3,  §§  11,  If). 

"  "Dc  Jure  N.il.,"  1,  I,  cliap.  (1,  §§  <.l  II:  1,11,  chap.  3,  §§10,20. 
"De  Offic.  Iloni.  (I  Civi^,"  1,  1,  ciiap.  2,   §§  \    F,. 


§27]        THE  SEVENTEENTH   CENTURY  127 

3:  Spinoza.  Spinoza  ^  (1632-1677)  contributed  a  not- 
able doctrine  to  metaphysics,  but  also  a  fundamental 
philosophical  error.  He  stands  out  as  a  defiant  rocky 
headland,  suggestive  of  power,  but  wholly  aloof  from 
human  interests.  His  distinctive  philosophic  contribu- 
tion is  the  conception  of  pantheism.  Schelling  put 
in  the  place  of  a  realistic  pantheism  an  idealistic  one; 
Goethe  returned  to  the  pantheistic  position;  while  to 
Hegel,  pantheism  resolved  itself  in  universal  reason. 
Pantheism  still  forms  the  keynote  of  the  modern  opposi- 
tion to  realism. 

The  fundamental  error  of  Spinoza's  system  is  his  un- 
remitting adherence  to  pantheism  carried  to  the  con- 
sideration of  the  details  of  the  physical  world  and  of 
human  action  and  purpose.  Pantheism  may  be  accepted 
as  a  point  of  departure  and  as  a  goal,  but  is  not  to  be 
insisted  upon  in  the  procedure  of  scientific  investigation. 
Human  knowledge  begins  where  the  conception  of  a  chaos 
giving  way  to  cosmos  through  a  pantheistic  interven- 
tion, is  abandoned,  and  is  replaced  by  the  gradual 
differentiation  of  the  realms  of  knowledge.-  The  panthe- 
istic view  discloses  each  individual  object,  not  as  inde- 
pendent, but  as  an  indispensable  part  of  the  cosmos. 
The  scientific  attitude  postulates  the  detachment  of 
objects  from  their  meanings,  and  attempts  their  explana^ 
tion  and  interpretation,  not  in  terms  of  an  ultimate 
purpose,  "sub  specie  seternitas,"  but  in  terms  of  their 
specific  nature,  "principium  individuationis."^     By  rea- 

^  Spinoza's  works  are:  "Tractatus  theologico-politicus,"  1670. 
"Tractatus  politicus,"  a  fragment,  1678,  published  after  Spinoza's 
death.  "Ethica  ordine  geometrico  demonstrata,"  1677.  (I  cite 
from  the  edition:  Benedicti  de  Spinoza  opera  quotquot  reperta  sunt 
recognoverunt  van  Vloten  et  Land,  I,  Hagae  1882. 

^Berolzheimer,  "System  der  Rechts-und  Wirtschaftsphilosophie.'' 
Vol.  I,  pp.  131-135,  and  pp.  23-29. 

^ B er olzhe inter,  "System,"  etc.,  Vol.  I,  pp.  307  seq. 


128  CIVIC   EMANCIPATION  [Ch.  V 

son  of  his  insistent  adherence  to  the  jiantheistic  prin- 
ciple, Spinoza  reaches  a  fatalistic  determinism;  a  legal 
philosophy  and  a  science  of  politics  are  made  impos- 
sible, and  attain  an  apparent  reality  by  sacrifice  of 
consistency. 

God  is  substance  and  there  is  no  other  substance  than 
God;  all  that  is  real  rests  in  God.^  Accordingly 
Spinoza's  view  requires  the  world  and  its  phenomena, 
including  man  and  his  operations,  to  be  conceived 
as  parts  of  nature;  he  inevitably  takes  a  position  opposed 
to  the  rationalistic  philosophy  which  preceded  and 
followed  him.  In  other  philosophies  man  was  set  apart 
as  a  phenomenon  by  himself;  and  nature  was  conceived 
as  an  independent  reality  on  the  one  hand,  and  man, 
with  his  desires,  aims,  and  considerations,  equally  self- 
sufficient,  on  the  other.  The  relation  was  conceived 
as  though  man  were  the  absolute  master  of  his  actions, 
and  as  though  his  presence  would  disturb  the  order  of 
nature  rather  than  be  subjected  to  it  as  part  to  whole.^ 
This  detachment  of  man  from  nature,  and  self-sufiicient 
view  of  human  activity,  has  at  times  led  philosophers  to 
disown  or  to  slight  human  impulses  and  emotions, 
"affectus,"  instead  of  attempting  an  interpretation  of 
their  true  meaning.  It  is  clearly  a  part  of  the  problem 
of  philosophy  to  respect  human  passions  and  to  give 
them  a  place  in  a  philosophical  system.^ 

As  a  fact  human  desire  and  action  are  partly  determined 
by  emotion,  and  partly  by  reason.  In  so  far  as  man  is 
swayed  by  emotion  he  becomes  a  slave;    and  in  so  far 

»  "I'lthica,"  p.  I,  props.  11,  14,  15. 

*  "Kthicei,"  p.  Ill  ]ircfacc:  "Nam  hominem  Naturse  ordincm  magis 
pcrturbarc  quam  Kccjui,  ipsumque  in  suas  actioncs  absolutam  habere 
polcntiam  ncc  aliunde  quam  a  se  ipso  dcterminari  crcdunt." 

Compare  wilh  this  "IClhica,"  p.  IV  ai)pendix,  chaps.  VII  and  I. 

^  "lilhica,"  J).  Ill  i)rcface. 


§27]        THE  SEVENTEENTH   CENTURY  129 

as  he  is  guided  by  reason  he  becomes  free.^  In  his 
ethical  view  Spinoza  thus  anticipates  Kant;  but  the 
development  of  his  ethics  suggests  Aristotle  and  the 
Stoics.  While  his  insistence  upon  the  ethical  value  of 
knowledge  is  at  once  Socratic  and  Aristotelean,  his  ad- 
herence to  the  equanimity  conferred  by  wisdom  is  Stoic. 
Spinoza  distinguishes  three  orders  of  knowledge  i^  the 
highest  refers  and  reduces  everything  temporal  and  in- 
dividual to  God.  As  the  mind  of  man  considers  human 
existence  and  activity  "sub  aeternitas  specie,"  and  gains 
insight  into  the  connection  of  every  individual  phenome- 
non with  the  system  of  the  universe,  the  stronger  becomes 
his  conviction  of  the  absolute  inevitableness  of  events, 
and  the  greater  is  the  power  which  his  will  acquires  over 
his  passions;  the  more  deeply  he  feels  himself  at  one 
with  the  cosmos,  the  firmer  his  inalienable  love  of  God 
prevails  over  the  vicissitudes  of  life.^  The  free  moral 
man  entertains  no  depressing  ideas  of  death;  he  is  up- 
right, and  sympathetic  with  his  neighbors;  he  is  free 
from  the  desires  of  passion,  and  is  thus  superior  to  the 
ideas  of  good  and  evil.''     Significant  in  Spinoza's  pan- 

^  "Eth.,"  p.  IV:  '^De  Servitute  htimana  sen  de  affectuum  viribus"; 
"Eth.,"  p.  V:  "De  potentia  intellcctus,  sen  de  libertate  humana." 
We  here  note  the  same  ethical  consideration  which  later  made 
Kant's  ethics  famous.  Kant  posits  as  an  ethical  fundamental 
principle  that  man  should  develop  his  natural  character  into  a 
moral  one;  the  natural  character  is  not  free,  the  moral  character 
is  free.  Spinoza  as  a  determinist  refrains  from  a  moral  sermon 
and  is  content  with  establishing  the  correct  data:  the  man  who  is 
shaped  by  his  passions,  impulses,  and  desires,  is  their  slave;  the 
man  who  is  guided  by  reason  is  free,  is  master  of  himself.  See  also 
"P2th.,"  p.  V  preface;  p.  IV,  props.  63,  G7,  68,  and  the  demonstrations 
pertaining  thereto. 

^Berolzheimer,  "System,"  etc..  Vol.  I,  pp.  28  seq. 

3  "Eth.,"  p.  V  props.  14-16,  22-33;  p.  IV,  appendix,  cap.  IV, 
p.  II,  prop.  44,  cor.  2. 

*  "Eth.,"  p.  V,  props.  63,  67,  68,  71,  72. 


130  CIVIC  EMANCIPATION  [Ch.  V 

theism  is  his  view  of  the  identity  of  the  favoring  desire, 
"virtus,"  and  capacity,  "potestas";  the  placing  on  a 
par  of  the  conceptions,  perfection,  reality,  and  conduct, 
in  which  conduct  is  identical  w^ith  activity.^ 

Carried  to  a  consistent  conclusion,  Spinoza's  ethics 
would  hardly  lead  to  a  political  organization;  it  might 
lead  to  solipsism  (subjective  idealism)  or  autarchy  (self- 
sufficiency),  to  a  passionless  life  of  contemplation,  to 
a  Stoic  worldly  wisdom,  or  to  the  detachment  more 
recently  advocated  by  Stirner.  But  Spinoza  was  con- 
fronted by  the  fact  of  political  life  as  legally  organized, 
and  attempted  to  solve  the  problem  of  bringing  the 
State  and  law  under  his  pantheistic  system,  though 
naturally  with  some  violence  to  these  conceptions. 

Rationalistic  philosophers  assume  a  "natural  law" 
which  they  derive,  not  objectively  from  a  consideration 
of  nature,  but  anthropocentrically  from  the  rational  or 
social  nature  of  man,  from  certain  of  his  qualities,  or 
from  the  complex  of  human  traits,  dispositions,  and 
considerations.  Spinoza,  however,  proceeds  from  a  "nat- 
ural   law"    derived    from   objective    nature,    from    the 

constitution  of  the  universe:    "Per  jus Naturae  in- 

telligo  ipsas  Naturae  leges  seu  regulas,  secundum  quas 
omnia  hunt,  hoc  est  ipsam  Naturae  potentiam."  ^  ^ 

*  "Eth.,"  p.  V,  prop.  40,  dcmonstrat.;  compare  with  this,  "Eth.," 
p.  IV,  prop.  54. 

^  "Tractatus  PoHticus,"  chap.  2,  §4.  Stahl,  "Die  Genesis  der 
gegenwärtigen  Rechtsphilosophie,"  p.  G3,  is  wrong  when  he  states 
that  "the  later  philosophers  carry  through  definite,  rationalistic 
systems.     Spinoza  has  established  the  canon  of  rationalism." 

'  In  this  foundation  of  "Naturrccht"  Spinoza  appears  as  a  pure 
Stoic,  but  the  consistent  adherence  to  Stoicism  proves  to  be  untenable. 
He  therefore  finds  a  way  out  to  convention,  advantage,  and  epi- 
cureanism. It  is  thus  not  correct  to  regard  Spinoza  simply  as  an 
Epicurean,  as  does  W.  Ed.  Biermann,  "Staat  und  Wirthschaft," 
I,  pp.  7,  9.  For  Spinoza,  epicureanism  is  a  necessary  makeshift, 
a  flcparturc  from  hi-;  f)wn  system,  an  inrnnsistcncy. 


§27]        THE  SEVENTEENTH  CENTURY  131 

The  study  of  nature  teaches  us  that  every  crealure 
lives  according  to  the  laws  of  its  kind.  Fish  are  designed 
to  swim,  and  the  larger  ones  to  swallow  the  smaller  ones. 
In  like  manner  man  needs  a  sphere  for  the  exercise  of 
his  powers;  and  whatever  man  can  achieve  and  accom- 
plish, whether  for  good  or  for  evil,  is  his  natural  right. 
Whatever  happens,  takes  place  by  virtue  of  the  laws  of 
nature,  and  accordingly  by  a  natural  right.  Everyone 
has  "a  supreme  right  to  all  that  he  can  achieve."  What- 
ever happens  is  right  and  in  accord  with  right,  for  there 
is  no  wrong;  the  wrong  would  be  the  impossible.  So 
far  Spinoza  is  consistent;  and  his  consistency  leaves 
no  place  for  natural  right.  Right  is  might;  there  is  no 
order  of  right  separable  from  the  order  of  nature; 
everyone  may  do  what  he  can  do,  and  that  alone  is 
forbidden  which  nature  makes  objectively  impossible — 
in  reality,  nothing  whatever.^ 

Drawing  upon  Epicurus  and  Hobbes,  Spinoza  finds 
a  way  out  of  this  tangle.  Utility,  which  demands  the 
choice  of  the  lesser  evil,  leads  mankind  from  an  intol- 
erable subjection  to  nature,  to  convention.  The  State 
and  the  law  are  results  of  conventional  association, ^ 
and  are  determined  and  justified  wholly  by  the  utility 
which  apparently  they  secure.  As,  however,  no  legally 
constituted  law  follows  from  natural  law  —  not  even 
Hobbes'  principle  that  "Pacta  esse  praestanda"  —  util- 
ity becomes  the  sole  test,  not  alone  for  the  establish- 
ment, but  as  well  for  the  validity  and  maintenance  of 

1  "Tract.  Theol.-Pol.,"  chap.  16;  "Tract.  Pol.,"  chap.  II,  §§40 
seq.;  "Tract.  Theol.-Pol.,"  chap.  XVT:  "Ex  quibus  sequitur, 
Jus  et  Institutum  Naturae,  sub  quo  omnes  nascuntur,  et  maxima 
ex  parte  vivunt,  nihil,  nisi  quod  nemo  cupit  et  quod  nemo  potest, 
prohibere." 

2  For  this  Spinoza  uses  the  phrases:  "In  unum  conspirare"; 
"pacisci";    "omne  jus  potestatem  transferre." 


132  CIVIC  EMANCIPATION  [Ch.  V 

State  and  law.^  Accordingly  the  government  must  pro- 
vide for  the  common  welfare,  for  otherwise  there  would 
be  danger  of  revolution  and  destruction  of  the  State; 
government  is  the  sole  surety  against  tyranny  and  abso- 
lutism.- As  will  readily  be  understood,  this  doctrine 
exercised  no  influence  upon  political  conditions.  As  com- 
pared with  the  absolutism  of  Hobbes,  Spinoza's  view 
of  the  State  presents  a  point  of  advance  in  his  emphasis 
that  a  tyrannical  absolutism  carries  the  seed  of  its  own 
destruction;  and  in  his  further  emphasis  that  no  one 
can  relinquish  his  own  human  dignity;  for  which  reason 
authority  should  not  and  cannot  be  transferred  to  the 
governing  authorities.^ 

4 :  Thomasius.  The  secularizing  of  legal  philosophy, 
undertaken  by  Grotius,  was  completed  by  Thomasius* 
(1655-1728):  a  leader^  in  the  intellectual  Renaissance, 
and  a  popularizer  of  scientific  learning.     Utilitarianism 

^  "Tract.  Theol. -Pol,"  chap.  16;  chap.  II,  §§  4  seq.  See  also 
"Eth.,"  p.  IV,  props.  (20),  (38),  40,  73  (append.,  chaps.  15,  16). 
In  "Tract.  Pol.,"  VI,  I,  III,  9,  the  constitutional  agreement  falls 
into  the  background.  See  Menzel,  "Wandlungen  in  der  Staats- 
lehre Spinoza,"  Festschrift  der  Rechts-und  Staatswissenschaft- 
lichen Fakultät  der  Universität  Wien  für  Unger,  Stuttgart  1898, 
pp.  57,  59-63,  83-85.  The  explanations  made  by  Menzel  are 
somewhat  extreme.  The  change  is  of  no  essential  importance,  as 
the  entire  politics  of  Spinoza,  as  indicated  in  the  text,  is  not  derived 
organically  from  his  philosophy,  but  is  merely  attached  to  it  on  the 
basis  of  Hobbes'  principle  of  utility. 

2  "Tract.  Pol.,"  chap.  4,  §  6;   "Tract.  Thcol.-Pol,"  chap.  16. 

3  "Tract.  Theol,"  chap.  17. 

''  "Fundamenta  Juris  Natura^  et  Gentium,"  1705.  "Institutiones. 
Jurisi)rudenti;e  Divinic,"  Francofurti  ct  Lipsia;,  1688.  The  first 
work  furnishes  a  good  standard  for  judging  the  philosophical  and 
legal  standing  ;iiid  importance  of  Thomasius. 

'Whcllicr  and  how  f.ir  Thomasius,  with  reference  to  his  later 
works,  was  inllucnced  by  the  study  of  Locke  (sec  following  pages) 
cannot  be  defuiilely  determined. 


§27]        THE  SEVENTEENTH  CENTURY  133 

is  his  ethical  ^  principle,  yet  docs  not  occupy  a  notable 
position  in  the  development  of  his  legal  philosophy. 
He  divides  law,  "rectum,"  into  three  kinds:  justice, 
"justum,"  morality,  "honestum,"  and  propriety,  "de- 
corum." 2  The  distinction  is  based  upon  the  nature 
of  justice,  which  is  made  to  consist  in  its  external  rela- 
tion, not  in  the  inner  disposition,  and  may  accordingly 
be  forcibly  executed.  The  "lex  positiva  divina,"  as  a 
prescription  that  cannot  be  imposed,  falls  beyond  the 
pale  of  the  law.  There  is  a  natural  law^  and  a  positive 
law.*  The  foundations  of  natural  law  Thomasius,  like 
Pufendorf,  derives  from  a  divine  decree.  But  according 
to  Thomasius,  natural  laws  are  not  issued  by  God  as 
commands,  "ut  legislator  despoticus,"  but  as  a  wise 
admonition,  "ut  Pater,  Consiliarius,  Doctor,"^  addressed 
to  the  heart.'' 

^  "Fundam.  Jur.  Nat.  et  Gent.,"  I,  1,  chap.  6,  §§21  seq.;  chap. 
4,  §38.  L.  I,  chap.  6,  §21;  "Norma  universaHsquarumvisactionum 
et  fundamentalispropositio juris  naturae  et  gentium  late  sicdicti  est: 
Facienda  esse,  quae  vitam  hominum  reddunt  et  maxime  diuturnam 
et  felicissimam;  et  evitanda,  quae  vitam  reddunt  infeUcem  et 
mortem  accelerant." 

2  "Fundam.  Jur.  Nat.  et  Gent.,"  I,  1,  chap.  6,  §§32-43,64,  66,  74, 
75;  I,  1,  chap.  4,  §§  89-91;  I,  1,  chap.  5,  §  47.  Thomasius,  in  his 
"Bericht  von  den  künftigen  Thomasischen  Collegiis  und  Schriften," 
renders  "honestum,"  by  the  German  "Ehrbarkeit,"  and  "decorum," 
by  "Wohlanständigkeit."  Lassen,  "System  der  Rechtsphilosophie," 
p.  74,  translates  "decorum,"  "das  Schickliche";  E.  Landsberg,  "Ges- 
chichte der  deutschen  Rechtswissenschaft,"  p.  93,  chooses  the  word 
"Anstand"  for  "decorum." 

'Which  Thomasius  derives  from  "ex  sensu  communi,"  as  likewise 
he  designates  his  chief  work,  "Fundam.  Jur.  Nat.  et  Gent,  ex  Sensu 
Communi  Deducta." 

*  "Fundam.  Jur.  Nat.  et  Gent.,"  I,  1,  chap.  4,  §§  54  seq.,  77-83. 

«  "Fund.,"  etc.,  I,  1,  chap.  5,  §§  51,  52. 

®  "Fund.,"  etc.,  I,  1,  chap.  6,  §  15. 


134  CIVIC   EMANCIPATION  [Ch.  V 

In  contrast  to  Hobbes,  Thomasius  takes  the  position 
that,  in  themselves,  contracts  have  no  binding  force. ^ 
He  assumes  innate  rights  ^  and  also  innate  duties, 
"obligatio  connata."  ^  As  instances  of  the  former  he 
mentions  "libertas,  communio  primeeva";  and  of 
acquired  rights,  "Imperium,  dominium."  ^  He  pro- 
poses a  formula  of  justice,  which  reads,  "Do  not  to 
another  what  you  would  not  have  another  do  to  you."  ^ 
This  principle  is  notable  for  the  reason  that  Kant 
derived  irom  it  his  categorical  imperative.''  Whether 
this  dictum  has  any  further  claims  to  consideration  will 
be  examined  in  the  survey  of  the  Kantian  philosophy. 
The  principle  appears  as  an  ethical  precept  in  the  early 
Jewish-Christian  writings.  In  the  Book  of  Tobit  (IV, 
15)  it  is  written,  "Do  that  to  no  man  which  thou 
batest";  and  again  in  St.  Matthew  (VII,  12),  "All 
things  therefore  whatsoever  ye  would  that  men  should 
do  unto  you,  even  so  do  ye  also  unto  them:  for  this  is 
the  law  and  the  prophets";  and  again  in  St.  Luke 
(VI,  31),  "And  as  ye  would  that  men  should  do  to  you, 
do  ye  also  to  them  likewise." 

§28.  Lef^al  Philosophy  in  England.  1:  Locke.''  In 
Locke's   (1632-1704)    theory    of    knowledge,    sensation 

'"Fund.,"  I,  l.chap.  4,  §  9S:  "Pactum  non  obligat  immediate  sed 
mediante  et  praesupposito  consilio  ct  impcrio  juris  naturae  et  posi- 
tivae."  §  99;  I,  1,  chap.  V,  §  27:  "Jam  notatum  fuit,  pactum  perse 
non  oI)ligare,  ergo  nee  potest  per  se  jus  aut  producere,  aut  confirmare." 

2  "Fund.,"  etc.,  I,  1,  chap.  5,  §§  11,  12,  14,  27. 

3  "Fund.,"  etc.,  I,  1,  chap.  5,  §§  13,  14. 

*  "Fund.,"  etc.,  I,  1,  chap.  5,  §  12. 

*  'I'und.,"  etc.,  I,  1,  chaps.  G,  42;  "(seil,  primum  princi]Mum)  Justi: 
Quod  tibi  non  vis  fieri,  alteri  iie  fcceris." 

*"Act  only  according  lo  such  maxims  as  would  enable  you  to 
will  that  they  may  become  universal  laws."  "Grundlegung  zur 
Metaphysik  der  Sitten."  "Collected  Works,"  edition  in  10  volumes. 
Vol.  4,  Leipzig  1S3S,  p.  43. 

'' Bcrolzheimcr,  "System,"  etc.,  Vol.  1,  pp.  29-33. 


§28]     LEGAL  PHILOSOPHY  IN   ENGLAND      135 

or  experience  is  made  the  source  of  all  knowledge; 
hence  his  philosophy  of  law  and  economics  ^  proceeds 
upon  an  empirical  and  not  upon  a  rationalistic  basis. 
In  contrast  to  the  preceding  systems  of  "natural  law," 
his  procedure  shows  an  essential  advance,  in  that  he 
derives  the  condition  antecedent  to  the  State  from  the 
study  of  the  State  as  constituted,  and  eliminates  there- 
from whatever  is  presumably  the  result  of  the  develop- 
ment of  the  State  itself  and  of  the  several  institutions 
within  the  State.  This  procedure  is  suggestive  of  the 
Biblical  account  of  the  creation.  Locke  reaches  the 
following  conclusions:  Inasmuch  as  in  the  state  of 
nature  it  appears  that  creatures  of  the  same  kind  and 
of  the  same  stage  of  development  are  born  to  like  privi- 
leges and  equipped  for  the  enjoyment  of  like  capacities, 
are  free  and  equal  without  the  one  being  subject  to  the 
other,  it  follows  that  privilege  or  rule  must  have  been 
due  to  explicit  assertion  and  direct  establishment.^ 
According  to  Locke,  property  exists  in  the  state  of 
nature.  God  gave  man  dominion  over  the  earth  and 
endowed  him  with  reason,  which  he  was  to  use  to  his 
advantage  and  to  the  improvement  of  his  manner  of 
life.  God  gave  the  world  to  men  as  a  common  right. 
This  was  not  a  communal  grant  such  as  would  apply  to 
the  common  land  of  a  province  or  community,  but 
constituted  a  special  type  of  ownership.  The  world  was 
a  common  possession;  and  everyone  could  acquire 
property   through   labor   and   through   occupation.     To 

^ Locke,  "Two  Treatises  on  Government,"  1680.  I  cite  from  the 
tenth  edition  of  Locke's  works,  Vol.  5,  London  180L  "Two  Treatises 
of  Government."  Book  I,  "Of  Government,"  is  of  a  polemical 
nature,  against  Robert  Filmer  and  his  disciples;  Book  II,  "Of 
Civil  Government,"  contains  Locke's  system  of  the  philosophy  of 
state. 

^  "Two  Treatises,"  Book  II,  chap.  2. 


136  CIVIC  EMANCIPATION  [Ch.  V 

whatever  degree  anyone  could  make  property  service- 
able, his  possession  extended.^  The  condition  antece- 
dent to  the  State  discloses  a  primitive  form  of  the 
acquisition  of  right.  In  such  condition  there  exists 
freedom,  and  on  the  basis  of  individual  control  over 
possessions,  ownership.  So  long  as  the  natural  condi- 
tion persists,  everyone  is  free;  freedom,  however,  does 
not  mean  license,  but  independence,  and  as  such  belongs 
to  all.  To  make  possible  the  independence  of  all,  the 
assertiveness  of  each  individual  must  be  restricted. 
Accordingly  no  one  must  so  abuse  his  liberty  as  to  "de- 
stroy himself,"  or  "harm  another  in  his  life,  health, 
liberty,  or  propert}."  In  order  to  avoid  or  check  such 
injury,  "everyone  has  a  right  to  punish  the  trans- 
gressors of  that  law  to  such  a  degree  as  ma\'  hinder  its 
violation."  - 

In  a  state  of  nature,  in  which  as  yet  there  is  no  barter 
and  trade,  legal  relations  lack  security  —  a  guaranty 
which  onl>'  the  State  can  secure  by  the  enforcement  of 
law.  The  desire  to  acquire  such  regulated  security 
leads  to  the  establishment  of  the  State.  Consequently 
there  would  be  no  object  in  having  individuals  sacrifice 
more  of  their  liberty  and  assign-TTTöfe  of  their  rights 
to  the  State  tlian  is  necessary  to  secure  the  governmental 

1  "Two  Treatises;,"  Book  II,  chap.  5.  The  same  conception  is 
found  in  Bluntschli,  "Allgemeine  Staatslehre,"  sixth  edition,  revised 
by  R.  Loaiing,  Stuttgart  18SG,  p.  287:  "Private  property,  that  is, 
the  control  by  the  individual  of  material  things,  is  as  old  as  man 
himself.  When  the  first  men  gathered  fruit  from  the  trees,  and  used 
it  as  food,  they  consciously  exercised  a  dominion  over  it;  that  is, 
they  took  it  as  their  property.  When  they  chose  a  cave  and  pre- 
pared a  regular,  though  transient  abode,  they  also  took  possession 
of  it;  when  they  covered  their  nakedness  with  leaves  and  threw 
the  skin  of  an  animal  over  their  body,  they  again  acquired  property. 
Property  was  vol  created  by  the  Stute." 

'  "Two  Treat.,"  Book  II,  chap.  2. 


§28]    LEGAL  PHILOSOPHY   INENGLAND         137 

guaranty  of  right.  In  the  contract  with  the  State, 
men  assign  only  the  power  to  punish,  the  right  of 
legislation  and  legal  jurisdiction;  and  assign  these  only 
so  far  as  they  may  be  requisite  to  secure  individual 
freedom  and  private  ownership.  The  State  thus  serves 
the  interests  of  the  common  welfare;  and  the  sphere 
of  its  authority  does  not  extend  beyond  this  service.^ 
The  authority  of  the  government  is  derived  from  the 
people.  They  make  the  laws  and  are  the  supreme 
power.  The  monarch  is  only  the  executive.  Unjust 
laW'S  are  not  binding.  If  the  authority  of  the  monarch 
be  abused,  it  may  be  repealed.- 

There  are  two  traits  appearing  in  Locke's  philosophy 
of  government  and  law  that  are  characteristic  of  the 
English  attitude  and  mode  of  thinking  in  regard  to  the 
relation  of  the  individuell  to  the  State  —  an  attitude 
that  has  found  a  more  pronounced  expression  in  English 
legislation  than  in  any  other.  The  one  is  the  high 
regard  for  individual  liberty,  and  the  other  the  respect 
for  individual  property.  Locke's  philosophy  seems  to 
anticipate  the  constitutional  State  ("Rechtsstaat"),  and 
specifically,  the  English  constitutional  State,  the  Man- 
chester State  ("laissez  faire"  State).  The  high  regard 
for  personal  liberty^  which  appears  in  Locke  is  a  con- 
spicuous trait  of  the  English  national  character ;  and  no 
less  so  is  the  vigorous  defense  of  private  property.  In 
the  construction  and  in  the  conclusions  of  his  position, 
Locke  proves  himself  a  thorough  representative  of  his 
national  civilization.  His  ideas  crystallize  the  attitude 
and  temperament  of  the  English  mind. 

2:  Bentham.  As  Pufendorf  popularized  the  utili- 
tarianism of  Grotius,  and  Wolff  that  of  Leibnitz,  so  a 

i"Two  Treat.,"  Book  II,  chaps.  11,  14,  18,  19. 

2  "Two  Treat.,"  Book  II,  chaps.  9,  11,  12,  15. 

»  "Two  Treat.,"  Book  I,  chap.  1,  and  Book  II,  chaps.  2,  6,  8.  9. 


i;;s  (IX  U     1   \1  AM  U'A  IION  |(  ii.  V 

Cfiilms  l.ilci  Icu'iUN  Kiiilli.im'  ^.^ll>l)l^•lllt•^(l•^l  I  luUi'. 
Xiul  .1-.  llif  m.i:-si«l  lU.inkiiul  lu«lil  lo  (he  l.ill.UN  (li.it  lu.iii 
(1\\  ells  iiiit'ii  (lirc.iilli  lor  liir,  (>\\  11  li.ii)i)iiU'N;.,  KciU  li.im's 
(l(ir(iiiu>  (>l  "tlu-  y;uMlcr-l  li.ij  )|  >llu■^^s  ol  llu-  v;i(MtcsI 
uuiiiliri"  aK.iiiicil  a  poiniLii  il  \  not  .htohIi-iI  (o  |1u> 
striiUT  \u-\\s  el  lixkr.  luxniwi  (,l^l>^  \S',V2)  fham- 
pioiis  .iiM'pii  iiHMii,  iiulix  iilu.il  ( \  pr  ol  lit  ilil  .iii.iiiisiu.-  \\c 
inliui-s  till'  iniiiiipK'  to  tlii"  sinipK-  loi  iiuil.i  ol  tlu"  iiM\i- 
uiinn  Miiiuii.U  ion  ol  li.ippiiios  tlir  i^uMlrNt  iKippi 
iu-:-s  •'  ol  till"  i;u\il(;<(  iiimil>ri.  lie  roiul  mus  a  rliMi 
iiisiy;lil  with  li.il.iiuc  I  Ir  u-v;.iuls  in. in  not  as  a  lultui.il 
|Moihul,  bill  .is  .111  .inioni.uii-  imKiiI.ii  iiii;  m.u-hinr, 
nu'tti.inii  .ill\  u'y;isliMinv;  thr  .ul\  .ml  .ii;i's  .iiul  dis.ulxan- 
t.iv^rs  ol   r\  I'l  \    .u  lion;  plr.i^iiu's  .iiul   |i.iiiis'    .iii'    rntrn'il 

'/Vn/Äiim'.v  ihii'l  Ki;,il  pliiK>?,.ii>ln>  ,il  woilv  I  icnsiilu-tl  in  tlu> 
I  icui'li  ciliiiiMi  piiMi'-lu-i!  1>\  111,-.  .■-»•Iiol.ii  /\'rf;;, ".■.';  "  ri.iili's  «lo  I  .r^is- 
t.Uu'ii  V  i\  iK-  li  l\ii.iK-."  ;;  \  >'l-.  ,  r.ni-.  ISd'J.  riu-  iiiw  t-ili(it>ns,  l.i»n- 
«Km  IS.'iS  .nul   1S7I,  wric  not  .hir-siiiK-  to  nie. 

'  "  ri.iili  ■.  (If  1  ii.i-l.ii  i.Mi,  "  l.vh.ip.  l.lui;ins;  "  I'lii-  piihlii"  liinHl 
.sli,-ul>l  1h-  llu-  .'l>nrt  ol  llu-  K  y;i-.l,iloi  ;  m-iu-i.il  uli!il\  shoiilil  fiir- 
lUsli  llu-  l>.l^.is  oi  liis  .Ui;iinu-nlj.";  in  n-i;,(nl  louiiliiv,  lu-  s.ns  (p. 
i;;\  ill. 11  il  "i-\pu-^M's  tlu"  piopi-i(\  or  UiuK'iu  \  ol  .i  ihini;  (o 
pivMMU  .M>mo  i'\il  or  to  prov-mv  ,soim>  ^ooil.  l'!\il  is  p.iin,  oi  llu- 
r.ni,>iO  i>i  p.iii»;   i^ooil  is  pli-.isun",  or  tlu"  c.uisr  of  pliMsiirc." 

•■' \  ol.  l.vli.ip.  I'J.p.'.lS:  "Moi.iluN  ill  i;i-iu-i.il  i^- llu-.iu  ot  iliu-cl  iiii; 
llu"  .>ilioii>  oi  nun  so  .is  lo  pioiliui-  ilu-  y;u■.ll^^.l  po^^iMi-  sum  ot 
>;ooil.  I  i-i;i>l,uion  .sliouid  ti.i\c  llu-  s.iiiu-  (»Im»'»!."  In  iIh'  iollowink; 
vil. »lions  tlu-  limits  i>ii\vi-»'ii  inor.ility  .uui  l.iw  aiv  di-\i'K>pi-(l.  "IM 
two  opposilo  nu-tlioiis  vi  .ulion,  i\o  you  tlrsitv  to  know  wliiili  shoiiKl 
li.ni'  till'  |m-fi-ivnii-i'  (.'.iliiikUi'  tlu-ir  clToits  for  ^iooil  .uul  i-\  il, 
.iiul  pn-li-r  th.it  wliiili  piomisi-s  tlu>  v;ir.itor  sum  of  gooil  "  i,\  ol.  1, 
ili.ip.  I.'?,  p.  1  ll^\  "I  K- w  ho  .nlopis  llu-  />r(«(  (Ti/f- <>/' i<//7(7v  i-stiHMUs 
\irtin.'  to  I'l'  ^oi'tl  oiiK  i^w  .uvount  ot  tho  pli\isun-s  whiih  ivsult 
liom  it;  ami  viri-  i>  .in  i-\  il  oiiK  lur.uiM-  ot  tlu-  p.iins  wliiili  it  pro- 
tlim-x."     (\'ol.  l.rh.ip.  1,  p.   l.^ 

*  lU-ntli.im  thus  iK-iluii-s  .i  pi'iioloi;iiMl  piiiuipli-:  .\ttions  w  liiih  l>v 
tlu-ir  n.ituu'  )>ti-sum.il>K  or  .irlii.ill\  ilo  mou>  h.itm  th.m  ,i;ooil  .iir 
(orbiiliUii  l>\  lr>;iskitii>n;  an  .ulion  thus  totliiiUUn  is  imIUiI  a  irinu-; 


§28]    LEGAL   PHILOSOPHY   IN  ENGLAND      139 

and  the  balance  brought  forward.^  But  in  fact  a 
human  being  is  neither  a  calculating  machine  nor  a 
walking  ledger;  he  is  a  thinking  organism.  The  human 
mind  is  too  complex  and  its  motives  too  profound  to  be 
reduced  to  a  simj)le  formula.  Bentham  ignores  the  true 
ethical  imj^ulses  in  human  nature  unaffected  by  utility 
and  unrelated  to  prospective  pleasure  or  pain.^  Ben- 
tham's  influence  may  be  due,  in  large  measure,  to  the  fact 
that  he  brought  into  ethics  the  embodiment  of  the 
Anglo-Saxon  practical  sense. 

3:  Mill;  Austln.  The  doctrines  of  Bentham  were 
developed  by  John  Stuart  Mill»  (1806-1873).  Utili- 
tarianism remains  the  leading  principle,  yet  Mill's  posi- 
tion is  utilitarian  only  in  its  fundamental  formula  that 

and  to  runder  the  prohibition  effective,  punishment  must  be  imposed. 
Preventive  measures  against  crime  are  assigned  a  large  place.  Vol.  I, 
chap.  II,  p.  89,  and  Vol.  Ill,  pp.  1-158.  It  is  also  notable  that 
ihe  conception  of  property  is  affected  by  the  utilitarian  view. 
"Property  is  merely  the  basis  of  expectation,  the  expectation  deriv- 
ing certain  advantages  from  the  thing  possessed  by  virtue  of  the 
relations  established  in  regard  to  it."     Vol.  II,  p.  33. 

^  Bentham's  work,  "Panopticon,  or  the  Inspection  House,"  3 
vols.,  1791,  stands  for  reform  of  punishment.  Postscript,  Parts  I,  II, 
London  1791.  "Panopticon"  or  the  "Inspection  House,"  written 
1787,  Dublin  1791.  Compare  with  this  "Traite  de  Legislation," 
Vol.  HI,  pp.  209-272.  The  German  cellular  prisons  (at  Moabit, 
Nuremberg,  etc.)  were  built  upon  the  construction  of  the  Panop- 
ticon system  first  proposed  by  Bentham. 

2  From  Bentham's  point  of  view  the  opinion  of  a  modern  satirist 
would  be  correct,  namely,  that  sin  is  an  emotional  expression  for 
bad  business. 

^  Among  J.  S.  Mill's  works  it  is  not  those  dealing  wilh  political 
economy  —  "Essays  on  some  Unsettled  Questions  of  Political 
Economy,"  first  edition,  1844;  "Principles  of  Political  Economy," 
first  edition,  1848  —  that  are  most  to  be  considered,  but  particularly 
"On  Liberty,"  second  edition,  London  1859,  "Considerations  on 
Representative  Government,"  1861;  "Utilitarianism,"  second  edit., 
London  1804;   "System  of  Inductive  and  Deductive  Logic,"  2  vols. 


140  CIVIC  EMANCIPATION  [Ch.  v 

morality  consists  in  the  furtherance  of  the  happiness  of 
all  sentient  beings.^  For  Mill,  man  is  not  a  calculating 
biped,  but  a  being  endowed  with  an  ethical  nature. 
This  appears  first  in  his  emphasis  of  the  fact  that  the 
sympathetic  qualities  of  man,  the  contacts  of  man  and 
man,  are  not  exclusively  determined  by  considerations  of 
utility,  but  as  well  by  emotional  factors  which  find  their 
origin  in  unconscious  human  impulses  ;2  and  again  in 
his  view  that  man  has  the  power  to  modify  and  refine 
his  character.  Human  actions  are  determined,  but  not 
inevitably  and  minutely.  The  will  is  free  in  so  far 
as  man  has  the  power  to  regulate  desire  by  ideas  and 
motives,  and  so  direct  the  will  to  accepted  proper  ends. 
Human  character  is  thus  recognized  as  something  grow- 
ing, developing,  as  amenable  to  the  moral  motives  of 
self-culture.^  The  conclusions  drawn  by  Mill  from  his 
psychological  analysis  lead  in  practice  to  the  abandon- 

^  "Utilitarianism,"  chap.  2  ("What  Utilitarianism  is"),  pp.  9  seq.: 
"The  creed  which  accepts  as  the  foundation  of  morals  utility  or 
the  greatest  happiness  principle,  holds  that  actions  are  right  in  pro- 
portion as  they  tend  to  promote  happiness,  wrong  as  they  tend  to 
produce  the  reverse  of  happiness.  By  happiness  is  intended  pleas- 
ure, and  the  absence  of  pain ;  by  unhappiness,  pain,  and  the  privation 
of  pleasure.  .  .  .  Some  kinds  of  pleasure  are  more  desirable  than 
others." 

2  "U'lililarianism,"  chap.  3,  pp.  ."^O-f)!,  chap.  5,  pp.  G2  seq. 

^"Utilitarianism,"  pp.  59-61.  "Will,  the  active  phenomenon,  is  a 
different  thing  from  desire,  the  state  of  passive  sensibility."  "Cor- 
rectly conceived,  the  doctrine  called  Philosophical  Necessity  is 
simply  this:  that,  given  the  motives  which  are  present  to  an  indi- 
vidual's mind,  and  given  likewise  the  character  and  disposition  of 
the  in<ii\idu;il,  the  manner  in  which  he  will  act  may  be  unerringly 
inferred."  ("I.oi^ic,"  ]).  .')22.)  "I  le  has,  to  a  certain  extent,  a  power 
to  alter  his  character.  .  .  .  His  character  is  formed  by  his  circum- 
stances .  .  .;  but  his  own  desire  to  mould  it  in  a  particular  way,  is 
one  of  those  circumstances,  and  by  no  means  one  of  tlie  least  inHu- 
ential."     ("Logic,"  p.  r)24.) 


§29]      LEGAL  PHILOSOPHY   IN   FRANCE        141 

ment  of  utilitarianism.  In  his  essay,  "On  Liberty,"  Mill 
considers  the  limits  of  the  authority  of  society  over  the 
individual,  and  outlines  the  sphere  of  freedom  for  the 
several  portions  of  the  community.  In  his  "Considera- 
tions on  Representative  Government,"^  he  attempts  to 
establish  representation  as  the  best  form  of  govern- 
ment, and  sets  forth  its  nature  and  development.^ 

John  Austin^  (d.  1859)  was  the  founder  of  the  Eng- 
lish analytical  school  of  jurisprudence,  to  which,  so  far 
as  he  may  be  considered  a  jurist,  John  Stuart  Mill  also 
belonged.  The  contributions  of  this  school  are  charac- 
terized by  clearness  and  precision  of  thought;  however, 
they  consider  the  fundamental  questions  of  legal  science 
rather  than  those  of  legal  philosophy.'' 

§  29.  Legal  Philosophy  in  France.  1 :  Montesquieu. 
Montesquieu  ^  (Baron  de  la  Brede,  1689-1755)  is  the 
most  striking  example,  in  the  history  of  legal  philosophy, 

^  Chap.  3:  "That  the  ideally  best  form  of  government  is  repre- 
sentative government." 

2  On  Mill's  "Law  of  Causation,"  see  Berohheimer,  "System,"  etc., 
Vol.  I,  pp.  133  135,  237  seq.,  252.  See  also  Berolzheimer,  "Die 
Entgeltung  im  Straf  rechte,"  pp.  40-109,  3.50-352,  and  the  litera- 
ture there  cited;  and  also  Berolzheimer,  "Rechtsphil.  Studien," 
pp.  1-14. 

^  His  chief  works  are:  "Lectures  on  Jurisprudence  or  the  Philoso- 
phy of  Positive  Law"  (fourth  edit.  rev.  &  ed.  by  Rob.  Campbell, 
London  1873),  fifth  edition,  rev.  &  ed.  by  Rob.  Campbell,  2  vols., 
London  1885. 

^  For  a  list  of  the  most  important  of  these  writings  see  Bergbohm, 
"Jurisprudenz  und  Rechtswissenschaft,"  Leipzig  1892,  p.  14,  note. 

^  "L'Esprit  des  Loix,"  1748;  new  edit.,  Amsterdam  1755.  My 
citations  are  from  this  later  edition. 

The  term  "Esprit  des  Loix"  Montesquieu  interprets  as  "the  sev- 
eral relations  which  the  law  may  have  with  various  interests." 
These  relations  he  proposes  to  study;  particularly  the  relation  of  the 
laws  "with  the  nature  and  principle  of  every  form  of  government." 
(Book  I,  chap.  3.) 


142  CIVIC  EMANCIPATION  [Ch  V 

of  the  fact  that  the  formulators  of  fundamental  poUtical 
principles  exert  a  more  decisive  influence  than  do  the 
most  eminent  theorists.  In  a  last  analysis,  Montesquieu's 
ideas  go  back  to  Aristotle,  but  are  decidedly  modified 
by  the  example  of  English  legislation  as  interpreted  in 
France.  He  demands  a  threefold  division  of  authority 
in  the  State,  "puissance  legislative,  executive,  et  de 
juger,"  ^  and  holds  that  these  safeguard  political  liberty. 
Such  a  division  of  authority  preserves  the  dynamic 
balance  of  power,  automatically  checks  abuse,  and  makes 
impossible  the  imperiling  of  civil  liberty .^     This  system, 

1  "Esprit,"  etc.,  Book  XI,  chap.  6  ("De  la  Constitution 
d'Angleterre"). 

2  "The  poUtical  liberty  of  a  citizen  consists  in  that  peacefulness 
of  mind  arising  from  the  feeling  of  security;  and  to  have  this  free- 
dom the  government  must  be  such  that  no  citizen  shall  fear  another." 
(Book  XV,  chap.  6.)  Montesquieu  then  sets  forth  that  such  security 
against  abuse  of  political  power  and  against  tyranny  can  be  estab- 
lished only  by  a  proper  division  of  authority.  For  Montesquieu  the 
general  purpose  of  government  is  to  secure  political  freedom.  "In 
order  that  authority  shall  not  be  abused,  matters  must  be  so 
arranged  that  one  authority  shall  check  another."  (Book  XI,  chap. 
5.) 

The  advantage  of  political  freedom  is  set  forth  in  Book  XIX, 
chap.  27;  compare  also  Book  XXVI,  chap.  15.  "These  first  laws 
(political)  gave  men  their  liberty."  See  also  Sorel,  as  cited  above, 
pp.  102,  103.  In  regard  to  the  foundation  of  the  State,  Montesquieu 
follows  the  principle  of  "natural  law."  "I  have  not  derived  my 
princi|)les  from  my  prejudices  but  from  the  nature  of  things." 
(Preface,  p.  iv.)  In  speaking  of  the  laws  of  nature  (Book  I,  chap.  2) 
he  says:  "Fundamentally  these  laws  are  natural  ones  and  are  so 
called  because  they  are  derived  wholly  from  the  constitution  of  our 
nature.  To  understand  them  one  must  consider  man  in  a  condition 
antecedent  to  the  establishment  of  society.  The  laws  of  nature 
will  be  those  which  he  acquired  in  that  state."  (See  also  Book  I, 
chap.  3.) 

Montesquieu  refers  to  tlic  inlhirncc  (if  cliinatc  upon  legislation, 
especially  in  its  bearing  ui)on  political  freedom.  The  title  of  Book 
XVII  reads:    "The  relation  of  the  laws  of  ])olitical  slavery  to  the 


§29]     LEGAL   PHILOSOPHY   IN   FRANCE         143 

however,  is  barren  in  that  it  is  negative  and  makes  the 
protection  of  the  citizen  against  tyranny  ^  the  sole 
basis  of  government.  Furthermore  such  protection  is 
to  be  secured  mechanically,  as  though  governors,  offi- 
cials, judges,  and  administrative  officers  were  machines, 
and  laws  and  ordinances  were  physical  instruments. 
The  success  of  his  system  shows  how  in  the  progress  of 
politics  an  argument  resting  upon  an  "illusory"  basis  may 
exert  an  influence,  when  the  political  end  which  such 
faulty  reasoning  supports,  is  approved. 

2:  Rousseau.  Opinions  difTer  widely  as  to  the  value 
of  Rousseau's-  (1712-1778)  position,  as  well  as  to  its 
sources  and  influence.  His  peculiar  mind  and  tem- 
perament must  be  taken  into  account.  His  personality, 
character,  and  genius  suggest  a  comparison  with  Schopen- 
hauer. Both  show  the  querulous  hesitant  temperament 
of  the  neurasthenic,  with  its  favorable  as  well  as  unfavor- 
able influence  upon  intellectual  development;  both 
display  brilliance  of  thought,  expressed  in  clear,  terse, 
artistic  form;  in  both  the  larger  and  smaller  irritations 
of  life  were  confronted  morosely,  with  a  self -centered 
egotism;    witness   Schopenhauer's  celibacy,   and    Rous- 

nature  of  the  climate."  In  Book  XIX,  chap.  27,  he  says:  "I  do 
not  say  that  the  climate  has  produced  a  large  share  of  the  laws,  cus- 
toms, and  manners  of  this  nation,  but  I  say  that  its  manners  and 
customs  may  well  have  a  decided  bearing  on  its  laws." 

^ Stahl,  "Die  Genesis  der  gegenwärtigen  Rechtsphilosophie," 
p.  218.  Geyer,  "Geschichte  und  System  der  Rechtsphilosophie  in 
Grundzügen,"  p.  47.  R.  v.  Mohl,  "Die  Geschichte  und  Literatur 
der  Staatswissenscnaften,"  Vol.  Ill,  p.  387;  while  recognizing 
Montesquieu,  Mohl  says:  "The  world  w'ould  have  been  saved  many 
a  false  step  and  disaster  if  he  had  not  brought  the  doctrine  of  the  dis- 
tribution of  authority  into  a  long-enduring  predominance." 

2  I  cite  from  the  edition  of  his  works  that  lies  before  me:  "Oeuvres 
Completes,"  13  volumes,  Paris,  Hachette,  1884-1887  (Vol.  XIII  con- 
tains the  analytical  table  of  his  complete  works). 


144  CIVIC   EMANCIPATION  [Ch.  V 

seau's  abandonment  of  his  children  to  a  foundling 
asylum,  and  their  common  advocacy  of  detachment  from 
life.  But  while  Schopenhauer  proclaimed  disdain  for 
life  as  the  ultimate  aim  of  a  practical  philosophy,  Rous- 
seau —  like  Tolstoi  in  our  own  day  —  rejected  the  claims 
of  civilization,  and  advocated  return  to  nature  as  the 
complete  salvation.  But  the  "nature"  of  Rousseau, 
under  the  shelter  of  which  salvation  and  re-creation  are 
to  be  found,  is  not  at  all  the  nature  of  things  as  they  are. 
Rousseau's  imaginary  retreat  is  not  to  nature  wild, 
savage  and  turbulent,  but  to  nature  in  rosy  coloring, 
a  Watteau-like,  peaceful,  calm,  pastoral  idyll.  While 
Schopenhauer's  negation  of  life  is  modeled  upon  the 
Buddhistic  "nirvana,"  Rousseau  proposes  the  abandon- 
ment of  the  struggle  for  life,  and  the  withdrawal  from 
every  manifestation  of  energy,  from  the  daily  toil,  from 
self-assertion,  and  from  one's  individual  advancement 
above  his  fellow-men.  By  annihilating  self-interest,  the 
inequality  of  men,  which  is  the  greatest  of  all  evils,  is  to 
be  removed. 

The  prize  offered  by  the  Academy  of  Dijon  was  the 
occasion  for  Rousseau's  diatribe  against  the  economic 
and  legal  inequality  of  human  fortunes.  The  thesis 
proposed  by  the  Academy  was,  "What  is  the  origin  of 
the  inequality  of  men?  Can  it  be  justified,  'autoris^e,' 
by  the  law  of  nature,  'la  loi  naturelle'  "?  In  Rousseau's 
reply,  "Discours  sur  I'origine  de  I'inegalit^  parmi  les 
hommes"  (1775),  he  argues  that  the  physical  inequality 
of  men  is  determined  by  nature,  but  that  their  political 
inequality,  "inegalite  morale  ou  politique,"  if  not -due 
to  convention,  "le  conscntcment  des  hommes,"  has  at 
all  events  been  legalized  by  it,  "autorisöe."  Primitive 
man  in  his  savage  state  was  acquainted  with  but  one 
instrument  for  all  service — ^his  own  body.  There  were 
no  considerations  of  good  and  evil,  for  as  yet  morality 


§29]      LEGAL  PHILOSOPHY   IN   FRANCE        145 

and  duty  were  unknown.     Now  how,  from  such  a  state 
of  savagery,  did  a  civil  State  arise?     "The  man  who  first 
enclosed  a  bit  of  ground  and  gave  notice  by  saying, 
'This  is  mine,'  and  found  people  simple  enough  to  believe 
him,  was  the  true  founder  of  civil  society."    "Le  premier 
qui  ayant  enclos  un  terrain  s'avisa  de  dire  Ceci  est  a  moi, 
et  trouv6  des  gens  assez  simples  pour  le  croire,  fut  le 
vrai  fondateur  de  la  societe  civile."    So  long  as  men  were 
content  to  live,  each  on  the  product  of  his  own  labors, 
"tant  qu'ils  ne  s'appliquerent  qu'a  des  ouvrages  qu'un 
seul     pouvoit    faire,"     they     remained     free,     healthy, 
kindly,  and  happy;   but  as  soon  as  one  man  needed  the 
aid  of  another,  human  equality  disappeared;   the  rights 
of  property  became  established,   and   work   became  a 
task.    The  use  of  metals  and  the  cultivation  of  the  soil 
revolutionized  man's  lot:   "For  the  poet  it  is  gold  and 
silver  that  have  civilized  men  and  destroyed  humanity, 
but  for  the  philosopher  iron  and  wheat  have  effected 
this";    "Pour  le  poete,  c'est  Tor  et  I'argent;    mais  pour 
le  philosophe,  ce  sont  le   fer  et  le  ble  qui  ont  civilis6 
les  hommes  et  perdue  le  genre  humain."     These  inven- 
tions  were   succeeded   by   others.      The   multitude   of 
desires  and  needs  created  the  master  and  the  slave:  the 
man  of  wealth  required  the  labor  of  another,  the  poor 
man,  his  assistance.    Three  stages  of  increasing  inequality 
were  brought  about  through  the  legal  establishment  of 
private  ownership,   through   the  institution  of  govern- 
ment,  "I'institution  de  la  magistrature,"    and  through 
the  change  of  legal  power  into  arbitrary  rule,  "change- 
ment    du    pouvoir    legitime    en    pouvoir    arbitraire." 
The  first  stage  produced  wealth  and  poverty ;  the  second, 
rulers  and  subjects;    and  the  third,  masters  and  slaves. 
These   fundamental   considerations   form   the   approach 
of    Rousseau's  philosophical  masterpiece,  "Du  Contrat 
Social,  ou  Principe  du  Droit  Politique."     A  further  point. 


146  CIVIC  EMANCIPATION  [Ch.  V 

strangely  and  constantly  neglected  by  critics,  but  which 
is  important  in  any  appreciation  of  Rousseau  as  a  writer 
on  social  institutions  and  on  the  philosophy  of  law,  is  the 
radical  change  that  took  place  in  his  development.^ 
The  Rousseau  of  the  "Contrat  Social"  and  the  Rousseau 
of  the  "Discours"  are  altogether  different  persons.  The 
latter  is  a  supreme  idealist  preaching  a  return  to  nature.^ 
Rousseau  could  not  have  composed  the  "Contrat  Social" 
in  the  spirit  of  the  "Discours,"  for  the  "Discours" 
pursued  to  its  logical  and  practical  consequences  could 

1  Even  Liepmann,  who  interprets  Rousseau  with  insight,  has  failed 
to  observe  this.  He,  along  with  Stammler,  first  drew  attention 
to  the  fact  that  Rousseau  —  who,  in  the  theme  set  by  the  Academy 
for  the  "Discours"  followed  in  "traditional  lines" {Liepmann,  "Die 
Rechtsphilosophie  des  Jean  Jacques  Rousseau,"  p.  65)  ■ —  distinctly 
discarded  the  historical  approach  in  the  "Contrat  Social."  It  was 
through  Liepmann's  emphasis  of  this  point  that  my  attention  was 
called  to  the  change  of  front  in  Rousseau's  viewpoint. 

It  would  be  of  interest,  but  does  not  fall  within  the  compass  of 
my  survey,  to  show,  in  regard  to  the  other  works  of  Rousseau,  a 
like  contrast  between  the  dualism  of  his  idealistic  social  philosophy 
in  his  first  period,  and  the  objective  position  of  the  later  period. 

2 Upon  the  "Discours  sur  les  Arts  et  les  Sciences,"  and  the  "Dis- 
cours sur  L'Inegalite  parmi  les  Hommes,"  the  opinion  of  Maugras, 
"Voltaire  et  J.  J.  Rousseau,"  is  apt.  He  says  (p.  39):  "Voltaire 
was  the  most  brilliant  incarnation  of  his  times.  The  civilization, 
the  art,  the  science  that  Rousseau  considered  as  the  bane  of  society, 
Voltaire  regarded  as  its  source  of  illumination." 

The  opinion  of  Frederick  the  Great  upon  the  Rousseau  of  the 
"Discours"  is  given  in  a  letter  to  Lord  Marischal  ^ — "Oeuvres  de 
Frederic  le  Grand,"  Berlin,  Rod.  Decker,  20  vols.,  pp.  288, 
289,  and  mentioned  by  Du  Bois-Reymond,  "Friedrich  II  und  Jean- 
Jacques  Rousseau,"  Paris  1886,  p.  337.  "I  consider  that  'true 
philosophy  consists  in  condemning  abuse  without  interfering  with 
use.  One  must  be  able  to  dispense  with  everything  yet  not  give 
up  one's  claim  to  anything.  It  is  ridiculous  to  preach  that  all  are 
Cfjual  and  that  theref(jre  we  must  li\e  as  do  the  savages,  without 
laws,  without  society,  and  without  police;  that  the  fine  arts  have 
been  harmful  to  morals,  and  other  equally  vain  paradoxes." 


§29]      LEGAL  PHILOSOPHY  IN   FRANCE        147 

lead  to  no  positive  construction;  it  is  a  negation  of  law, 
of  government,  and  of  civilization.  A  mind  such  as 
Rousseau's  would  at  once  have  perceived  this  inconse- 
quence when  confronted  with  the  attempt  to  evolve 
a  philosophy  of  law  and  government.  As  a  fact  he  broke 
radically  with  his  former  position,  of  which  the  following 
well-known  citation  gives  evidence:  "Man  is  born  free, 
yet  everywhere  lives  in  fetters.  In  so  far  as  he  believes 
himself  master  of  others,  he  is  more  enslaved  than 
they.  How  does  this  change  of  status  come  about?  That 
I  need  not  consider.  But  what  has  legitimized  it?  This 
I  believe  I  have  set  forth."  "L'homme  est  ne  libre,  et 
partout  il  est  dans  les  fers.  Tel  se  croit  le  maitre  des 
autres,  qui  ne  laissent  pas  d'etre  plus  esclave  qu'eux. 
Comment  ce  changement  s'est-il  fait?  Je  1 'ignore. 
Qu'est-ce  qui  pent  le  rendre  legitime?  Je  crois  pouvoir 
resoudre  cette  question." 

This  passage  of  the  "Contrat  Social"  Liepmann  ^  makes 
the  focus  of  his  defense  of  Rousseau's  philosophy.  He 
maintains  that  Rousseau  thus  states  that  he  is  not  claim- 
ing an  historical  warrant  for  his  social  philosophy,  but 
is  merely  engaged  with  its  philosophic  interpretation. 
This  may  be  conceded;  and  if  Rousseau  had  not  also 
written  the  "Discours,"  Liepmann's  argument  might 
stand.  But  Rousseau  has  actually  presented  an  his- 
torical evolution  of  the  State,  of  law,  and  of  society, 
describing  how,  in  his  opinion,  law  and  the  State  arose. 
What  then  is  the  reason  for  the  rejection  of  the  histori- 
cal basis  which  he  had  earlier  framed?  In  his  work  on 
Rousseau  —  presumbly  written  under  the  influence  of 
Stammler  —  Haymann  ^  calls  attention  to  the  fact  that 

^  "Die  Rechtsphilosophie  des  Jean  Jacques  Rousseau,"  pp.  95- 
105.  Stammler,  too,  notes  the  changed  problem  in  "Die  Theorie 
des  Anarchismus,"  p.  14. 

2  This  work  is  dedicated  to  Stammler. 


148  CIVIC   EMANCIPATION  [Ch.  V 

Rousseau  admits  the  historical  position  in  other  passages 
of  the  "Contrat  Social"  itself. ^ 

The  phrase  "Je  I'ignore,"  at  the  beginning  of  the  "Con- 
trat Social,"  cannot  be  interpreted  to  mean,  "I  recognize 
no  historical  development,"  but  "I  do  not  accept  any"; 
it  becomes  a  disavowal  of  the  historical  solution  which 
Rousseau  in  his  earlier  writings  had  given.  This  change 
of  opinion  is  accounted  for  by  supposing  that  Rousseau, 
as  he  gradually  elaborated  and  clarified  his  opinions 
in  the  course  of  writing  the  "Contrat Social, "had  reached 
the  conclusion  that  a  legal  and  social  philosophy  could 
not  be  established  on  the  basis  of  the '  'Discours. ' '  Through 
the  topic  proposed  for  its  prize  by  the  Academy,  Rous- 
seau's attention  was  directed  specifically  to  the  prob- 
lem of  political  inequality;  and  government  and  law 
were  not  then  taken  into  consideration.  Meanwhile 
Rousseau  had  turned  to  the  general  philosophic  prob- 
lems among  which  he  considered  prominently  the  con- 
ception of  the  nature  of  political  liberty.  In  his  view 
of  liberty  Rousseau  shows  the  influence  of  the  classic 
conception  and  of  the  "tyrannomachy,"  enmity  to  ty- 
rants, derived  therefrom.  Liberty  is  the  absence  of 
tyranny;  it  is  not  lawlessness  or  license;  it  is  the  con- 
dition of  com])lete  obedience  to  the  law,  and  of  complete 

^  Haymann ,  "Jean  Jacques  Rousseau's  Sozialphilosophic,"  p.  3. 
The  significance  Haymann  attaches  to  "Je  I'ignore,"  namely,  that 
it  is  as  if  Rousseau  were  to  say  that  at  the  very  climax  of  his  system 
he  wished  to  have  nothiiiü;  to  do  with  the  historical  development; 
that  as  a  legal  philosoiiher  he  knew  nothing  about  it  and  had  no 
obligation  to  consider  it,  that  the  present  considerations  need  not 
make  any  assumptions  in  regard  to  those  fundamentally  dil'fcrent 
branches  of  knowledge;  -  tliis  xicw  is  merely  a  forced  explanation 
for  lack  of  a  better,  and  docs  not  hold.  For  Rousseau  rejects  the 
historical  evolutionary  ni<l  hod  and  justification  not  only  at  this  point 
of  the  "Contrat  Social,"  init  discards  herein  in  general  the  historical 
presentation  laid  down  in  the  "Discours." 


§201      LEGAL  PHILOSOPHY  IN   FRANCE        149 

absence  of  any  rulcrslii]i  outside  of  law.  In  order  that 
liberty  shall  exist,  the  law  itself  must  be  the  product 
of  liberty;  not  of  the  self-interested  authority  of  a 
tyrant/  but  the  product  of  a  common  will,^ — ■  in  his  own 
words  "volonte  generale,"  in  contrast  to  the  will  of  the 
collective  individuals,  "volonte  de  tons," —  thus  ex- 
pressing the  sovereignty  of  the  people. ^ 

"L'homme  est  ne  libre,  et  partout  il  est  dans  les 
fers."  To  the  exposition  of  this  complete  change  of 
opinion  the  first  book  of  the  "Contrat  Social"  is  devoted. 
Neither  the  social  order  nor  the  law  is  due  to  nature. 
Might  never  can  make  right.  Hence  the  legality  of 
right  must  be  based  upon  convention.^  The  central 
problem  which  the  "Contrat  Social"  attempts  to  solve 
is  the  determination  of  a  communal  bond,  "trouver 
une  forme  d'association,"  that  shall  protect  and  secure 
the  social  service  of  the  person  and  property  of  every 
citizen,  and  yet  leave  the  individual,  through  his  asso- 
ciation with  his  fellow-men,  "s'unissent  ä  tous," 
subject  to  himself  alone,  and  as  free  as  ever.  Every 
infraction  of  the  social  compact,  "pacte  social,"  would 
invalidate  or  destroy  this  contract.  In  case  he  were 
thereby  to  lose  the  regulated  liberty  resulting  from  the 
compact,  and  for  the  sake  of  which  he  gave  up  his 
natural  liberty,  each  party  to  the  contract  would  resume 
his  fonner  rights  and  regain  his  natural  liberty.* 

^  "Contrat  Social,"  I,  8. 

2  "Contrat  Social,"  II,  1;  II,  6;  "Emile,"I,  5;  "Lettre  6me  de 
la  montagne''  ("Oeuvres"  III,  p.  203).  See  the  citations  used  by 
Haymann,  "J.  J.  Rousseau's,"  etc.,  p.  41,  note  3,  and  pp.  85  seq. 

3  "Contrat  Social,"  I,  2,  4.  "The  regulative  character  of  the 
law  is  of  a  conventional  type."  Liepmann,  "Die  Rechtsphil.,"  etc., 
p.  101. 

*  "Contrat  Social,"  I,  6.  As  a  fact  it  is  the  complete  enslave- 
ment and  deprivation  of  rights  of  the  individual  as  against  the 
State    which    Rousseau,    following    ancient    examples,    advocates. 


150  CIVIC  EMANCIPATION  [Ch.  V 

The  nature  of  Rousseau's  social  compact  may  be  thus 
rendered:  each  individual  subjects  his  person  and  his 
operations  to  the  superior  control  of  the  conmion  will, 
"volonte  generale,"  and  in  so  far  each  becomes  an 
indissoluble  inember  of  the  whole.  Such  association 
replaces  the  individual  contracting  party  by  a  legal 
corporate  personality,  "corps  moral  et  collectif," 
termed  the  State  when  in  a  static  condition,  "quand  il 
est  passif,"  and  the  sovereign,  as  a  political  power, 
"quand  il  est  actif,"  and  authority,  "puissance," 
with  reference  to  the  subjects,  "en  le  comparant  ä  ses 
semblables."  The  subjects  of  the  State  collectively 
are  called  the  people.  They  are  to  be  called  citizens  in 
so  far  as  they  have  a  share  in  political  power,  "comme 
participant  ä  I'autorite  souveraine."  They  are  to  be 
called  subjects  as  subject  to  the  laws  of  the  State. 
These  distinctions  are  drawn  in  accordance  with  the 
specified  relations,  but  the  terms  are  not  always  pre- 
cisely used.^ 

The  welfare  of  the  people  is  the  most  important  end 
of  government.  It  is  to  be  secured  by  carrying  out  the 
communal  will  in  all  respects.^  The  law,  to  justify  its 
existence,  must  serve  common  interests.^  The  demands 
of  the  law  should  coincide  with  those  of  utility.^  Gov- 
ernment is  to  equalize  the  more  pronounced  inequalities 
of  fortune,  "I'extreme  Vnegalitc  des  fortunes,"  but 
must  not  do  so  by  despoiling  the  wealthy  to  build  homes 

Rousseau's  roncciJtioii  of  freedom  is  ihc  freedom  of  the  community 
as  against  tyranny,  butalong  with  it  an  enslavement  of  the  individual 
as  against  the  community  —  a  situation  suggestive  of  modern  social- 
ism.    See  also  Maugras,  "Voltaire,"  etc.,  p.  176. 

1  "Contrat  Social,"  I,  0. 

=*  "Con trat  Social,"  II,  11;  "Econoniie  Toiitique"  ("Oeuvres,"  III), 
p.  283. 

'  "Lettre  6mc  dc  la  montagne,"  p.  203. 

*  "Contrat  Social,"  Introduction. 


§29]      LEGAL   PHILOSOPHY   IN   FRANCE        151 

for  the  poor,  but  through  preventive  measures.^  The 
most  suitable  forms  of  government  are  democracy  for 
small  States,  aristocracy  for  those  of  medium  size,  and 
monarchy  for  large  ones.- 

A  critical  estimate  of  Rousseau  cannot  claim  that  his 
writings  have  directly  advanced  the  theory  of  govern- 
ment and  the  philosophy  of  law,^  but  rather  that  they 
were  of  far-reaching  influence  in  supplying  the  basis  of 
political  positions.     In  this  respect  the  "Discours"  must 
be    considered    apart    from    the    "Con trat  Social."     In 
content  the  former  is  far  superior,  but  the  influence  of 
the  latter  was  decidedly  greater.     The  answer  to  the 
question  whether  Rousseau  is  to  be  looked  upon  as  the 
precursor  and  intellectual  sponsor  of  the  fanatical  struggle 
for  liberty  of  the  French  Re\'olution  will  depend  upon 
whether  one  has  in  mind  the  Rousseau  of  the  "Discours" 
or  the  Rousseau  of  the  "Contrat  Social."     With  equal 
justice  it  may  be  answered  in  the  affirmative  or  in  the 
negative.     If  we  consider  Rousseau,  the  philosopher  of 
the  "Contrat  Social,"  the  answer  must    be  "no,"  *  for 
therein  he  does  not  advocate  absolute  political  equality; 
if   we   consider   the   Rousseau    of   the    "Discours,"  the 
answer  must  be  "yes,"  for  the  outspoken  singleness  of 
purpose  of  the  "Discours"  was  a  suitable  medium  to 
influence   the   minds   of   the   masses.     The   masses   are 
ever   led   by   striking   phrases,    by   smooth   and   simple 
formuUe;    and  the  lure  of  universal  equality  completely 
served  its  political  purpose. 

1  "ficonomie  Politique,"  pp.  290,  291;   "Contrat  Social,"  II,  11. 

2  "Contrat  Social,"  111,2,  3. 

^  Indirectly,  however,  in  that  Rousseau  had  a  decided  influence 
upon  Kant's  views  of  the  State.     See  below,  §  33. 

*Jclli)iek,  "Die  Erklärung  der  Menschen  und  Bürgerrechte 
(Ein  Beitrag  zur  modernen  Verfassungsgeschichte),"  Jellinek- Meyer, 
"Staats-und  Völkerrechtliche  Abhandlungen,"  Vol.  I,  Part  3,  Leipzig 
1895,  pp.  4-6. 


152  CIVIC  EMANCIPATION  [Ch.  v 

3:  Diderot.  The  career  of  Diderot^  (1713-1784)  as 
a  publicist  formed  an  essential  factor  in  the  antecedents 
of  the  French  Revolution.  His  influence  was  exerted 
partly  through  the  popularity  of  his  philosophic  writings, 
but  mainly  through  the  Encyclopedia  -  which  he  edited. 
The  fonner,  sceptical  in  tone,  at  first  assumed  a  deistic 
position,  but  later  an  explicitly  atheistical  one;^  the 
latter  assembled  the  destructive  elements  in  the  intel- 
lectual undermining  of  the  leading  minds  of  France. 
Diderot's  strength  lay  in  destructive  rather  than  in 
constructive  criticism.  His  style  was  brilliant  and 
attractive.  He  adapted  .freely  the  moral  philosophy  of 
Shaftesbury;^  he  contributed  some  passages  to  Rous- 
seau's "Discours  sur  I'inegalite;^  and  he  commented 
upon  Beccaria's  "Dei  Delitti  e  delle  Pene";^  his  own 
views  of  punishment,  expressed  in  regard  to  the  divine 
exercise  of    punitive  judgment,  support  the    theory    of 

1  "Oeuvres  Completes"  de  Diderot,  20  vols.  Assezat  and  Tour- 
neux,  Paris,  1875-1877. 

2  "Encyclopedie,  on  Dictionnaire  Raisonne  des  Sciences,  des  Arts 
et  des  Metiers,"  Paris,  1751-1767,  17  vols.,  besides  two  vols,  of 
illustrations. 

3  "Pensees  Philosophiques"  ("Oeuvres  Completes,"  I, pp.  123-170); 
"La  Promenade  du  Sceptique  ou  les  Alices"  ("Oeuv.,"  pp.  171-257); 
"De  la  Süffisance  de  la  Religion  Naturelle"  ("Oeuv.,"  pp.  259-273); 
"Lettresur  les  Aveugles,  ä  L'Usage  de  ceux  qui  Voient,"  and  "Lettre 
sur  les  Sourds  et  Muets." 

^"Principes  de  la  Philosophic  Morale  ou  Essai  sur  la  Merite  de  la 
Vertu,"  par  Mylord  S.  (Shaftesbury),  translated  from  the  English. 
("Oeuv.,"  1,  p|).  3   121.) 

••"Oeuv.,"  iV,  \)\).  100-104:  "Morceau  de  Diderot  insere  dans  le 
discours  sur  rincgalitc  des  conditions  parmi  les  hommcs  de"  J.  J. 
Rousseau"  (1754). 

«"Oeuv.,"  IV:  "Des  Delits et  des  Peines,"  pp.  51-G<)  (pp.  53-60, 
Letter  of  Ramsay's  on  Beccaria's  work) ;  pp.  60-63,  "Des  Recherches 
sur  le  Style,"  by  Beccaria;  pp.  63-69;  notes  by  Diderot  on  the 
treatment  of  offenses  and  punishments. 


§29]      LEGAL  PHILOSOPHY   IN   FRANCE        153 

general  prevention.^  In  his  "Code  de  la  Nature"  he 
adv'ocates,  in  a  somewhat  transcendental  form,  the 
Stoic  ^  principle  of  living  according  to  nature.  His 
"Principes  de  Politique  des  Souverains"  ^  contains 
maxims  and  aphorisms,  with  frequent  classical  allusions 
—  the  whole,  at  times  suggestive  of  Machiavelli's 
"Prince"  —  that  form  a  compilation  of  political  prin- 
ciples for  absolute  *  monarchs.  Diderot  makes  no 
attempt  to  conceal  his  opinion  of  such  rulers,  and  gives 
to  one  of  his  maxims  the  title  "Maxime  detestable,"  to 
another,  "Perfidie  abominable,"  and  to  a  third,  "Un 
role  perfide  et  vil."  While  Diderot  thus  expounds  the 
best  principles   for   absolutism,   he    at   the    same    time 

1  "Pensees  Philosophiqucs,"  III,  with  reference  to  divine  punish- 
ment. "What  relation  is  there  between  the  offender  and  the 
offense,  and  what  between  the  offense  and  the  punishment?  Just 
amass  of  absurdities  and  cruekies."  "Oeuv.,"  chap.  I,  p.  165.  "La 
Promenade  du  Sceptiquc"  ("Oeuv.,"  I,  p.  213),  speaking  of  divine 
punishment  he  says:  "One  cannot  say  that  punishment  occurs  for 
the  sake  of  example,  for  there  is  no  one  whom  punishment  can 
intimidate.  If  our  sovereigns  inflict  punishment  it  is  in  the  hope 
of  deterring  those  who  may  be  tempted  to  imitate  the  culprit." 

2  "Oeuv.,"  IV,  pp.  107-117:  "Abrege  du  code  de  la  nature  extrait 
du  Systeme  de  la  nature  du  baron  d'Holbach."  (P.  116):  "The 
morality  of  nature  is  the  only  religion  which  the  interpreter  of 
nature  offers  to  his  fellow-citizens.  The  friend  of  man  can  never 
be  the  friend  of  the  gods.  (P.  117):  "Oh  nature  !  sovereign  of  all 
beings,  and  you,  adorable  daughters.  Virtue,  Reason,  Truth  !  may 
you  ever  be  our  only  divinities;  to  you  is  due  all  the  worship  and 
homage  of  the  earth.  Then  show  us,  oh  Nature,  what  man  shall 
do  to  obtain  that  good  fortune  which  you  desire  for  him.  May  the 
beneficent  fires  of  Virtue  inspire  him,  may  Reason  guide  his  uncer- 
tain steps  in  the  paths  of  life,  may  the  Torch  of  Truth  light  his  way! 
Oh  helpful  deities,  combine  your  power  to  support  our  hearts,  banish 
from  your  minds  error,  malice,  trouble;  and  let  knowledge,  goodness, 
and  serenity,  reign  in  their  place." 

3  "Oeuv.,"  II,  Paris  1875,  pp.  461-502. 
*  "Oeuv.,"  II,  p.  461,  note  1. 


151  CIVIC   EMANCIPATION  [Ch.  V 

expresses  a  severe  disapproval  of  the  absolutist  program, 
and   indicates  its  weakness.^     Further    excursions    into 

^  "Look  upon  all  ambitious  persons  as  your  born  enemies.  .  .  . 
Themost  dangerous  are  the  high  and  mighty,  the  poor,  and  those  in 
debt,  who  have  all  to  gain  and  nothing  to  lose  by  a  revolution." 
II;  In  Diderot  there  follows  a  citation  from  Tacitus'  "Annals," 
Book  XIV,  chap.  LVI I.  "Sulla  inops,  undepraecipuaaudacia."  Com- 
pare with  this,  Shakespeare,  "Julius  Caesar,"  1,  2,  Caesar  on  Cassius. 

"It  is  easy  to  obtain  justice  in  small  affairs;  for  that  seems  to 
confer  the  right  to  infringe  with  impunity  in  big  affairs:  "Maxime 
Detestable,"  III. 

"When  you  are  plotting  against  your  sovereign,  place  a  spy  in  his 
service."     XVII. 

"To  make  citizens  of  slaves  is  a  very  good  thing,  but  it  would 
have  been  better  not  to  have  had  any  slaves."     XXXIII. 

"Always  put  the  name  of  the  senate  before  your  own  {Ex 
senatusconsulto,  et  auctoritate  Ccesaris).  It  will  matter  little  if  there 
is  no  senate."     XXXV. 

"Let  it  be  agreed  that  the  laws  are  made  for  all,  for  the  sovereign 
as  well  as  for  the  people;   but  do  not  believe  it."     XLI. 

"Always  respect  the  laws  that  do  not  trouble  you,  but  trouble 
others.     It  is  still  better  to  respect  all  the  laws."     XLIV. 

"Liberate  the  slaves  when  yon  netnl  their  testimony  against  a 
master  whom  you  want  to  ruin."     XLVI. 

"Whatever  is  respected  in  a  monarchy  alone  is  merely  a  patent 
of  slavery."     LIX. 

"Whoever  is  not  master  of  a  soldier  controls  nothing."     LXV. 

"l-'or  yourself  you  want  slaves;  the  nation  needs  free  men." 
LXXIX. 

"Satire  and  complaint  should  be  permitted;  suppressed  hatred 
is  more  dangerous  than  ojien  hatred."     LXXXX'l. 

"Sacrifice  all  for  the  niililary."     XCI. 

"Let  there  be  no  ministers  abroad,  only  spies."     XCVII. 

"Let  there  be  no  ministers  at  home,  but  clerks."     XCVIII. 

"Be  the  first  .soldier  of  the  army."     CI. 

"My  subjects  are  only  slaves  under  a  more  hoiioralile  name."     CV. 

"A  king  is  neither  father,  son,  brotlur,  kin,  husband,  nor  friend. 
What  is  he  then?     He  is  a  king,  even  wlun  he  sleeps."     CXXX. 

"In  the  State  there  is  but  one  refuge  for  e\il  doers  —  the  palace 
of  the  king."     CLXXIV. 

'  l.cl  iiiiii  |)ersuade  his  subjects  that  the  evil  done  uiUo  tiiem  is 
fc.r  ili.ir  guo.i."     CI. XXXIV. 


§29]       LEGAL   PHILOSOPHY  IN   FRANCE         155 

politics  are  to  be  found   in   his   "Refutation   suivie  de 
I'ouvrage  d'Helvetius  intitule  rhommc."  ^ 

4:  Godwin.  The  most  important  of  the  works  of 
William  Godwln-  (1756-1836)  is  his  "Enquiry  con- 
cerning Political  Justice  and  its  Influence  on  Morals  and 
Happiness."  In  this  work  Godwin  appears  as  an 
advocate  and  defender  of  political  liberty  ^  and  equality  ^ 
before  the  law.  The  work  also  contains  ethical  studies 
and  opinions  ^  concerning  certain  legal  issues,  such  as 
those  involved  in  suicide,  duelling,  etc.*^  Godwin 
conceives  the  community  as  built  up  of  individual 
components.''  He  attempts  to  establish  as  a  political 
ideal  an  anarchistic  state  of  society  in  which  the  power 
of  the  State  shall  be  abolished,  and  in  which  there  shall 
be  no  property  in  the  sense  of  legal  title.  An  equal 
distribution  of  property,  with  due  consideration  of 
equity,  shall  replace  property  legally  secured  and  un- 
equally divided.  The  principle  guiding  the  measures 
of  society  and  applicable  to  the  distribution  of  property 
is  that  of  the  good  of  the  community.  Godwin  believed 
that  such  anarchistic  state  of  society  could  be  brought 
about  by  convincing  men  of  the  necessity  of  abolishing 

^Diderot,  "Oeuvres  Completes,"  II,  pp.  275-456.  Particularly 
pp.  3S0-382,  388-390,  419,  442,  443-450. 

^  1793,  translated  also  in  German.  I  cite  from  the  second  edit. 
2  vols.,  London,  1798. 

^See  particularly  Vol.  I,  pp.  96-105.  "The  real  enemies  of 
liberty  in  any  country  are  not  the  people,  but  those  higher  orders 
who  find  their  imaginery  profit  in  a  contrary  system"  (p.  105); 
pp.  249-306,  "Of  resistance,  revolutions,  tyrannicide";  Vol.  II, 
pp.  1-207. 

*Vol.  I,  pp.  144^148. 

*Vol.  I,  Book  IV,  chap.  X.  "Of  self-love  and  benevolence"; 
p.  425,  "On  the  origin  of  benevolence." 

^  Vol.  I,  Book  II,  chap.  2,  beginning. 

^  Vol.  I,  p.  137:  "Society  is  nothing  more  than  an  aggregation  o' 
individuals." 


156  CIVIC  EMANCIPATION  [Ch.  V 

the  State  and  the  law  in  the  interest  of  the  common 
good,  in  which  view  Godwin  differs  from  the  true 
anarchists  and  approaches  the  position  of  the  Utopians. 
And  indeed,  upon  the  founders  of  anarchy,  Proudhon 
and  his  successors,  Godwin  exercised  no  influence.  It 
may  be  added  that  his  wife,  Mary  WoUstonecraft  (1759- 
1797)  was  the  author  of  the  "Vindication  of  the  Rights 
of  Women,"  ^  a  work  in  the  interests  of  the  feminist 
movement,  the  trend  of  which  reflects  the  agitations  of 
the  French  Revolution, 

§30.  Legal  Philosophy  in  Germany.  1:  Leibnitz. 
The  legal  philosophy  of  Leibnitz  (1646-1716)  is  built 
upon  the  model  of  Roman  law,  yet  with  suggestions  of 
Greek  influence.  In  Roman  law  the  interest  is  focussed 
upon  the  "paterfamilias";  Leibnitz  similarly  empha- 
sizes the  position  of  the  "vir  bonus."  By  this  is  meant 
the  average  man  endowed  with  due  reason,  "sapiens," 
and  in  a  cultured  state,  "qui  amat  omnes,  quantum 
ratio  permittit."  The  virtue  with  which  the  "vir 
bonus"  is  endowed,  the  <^tA.ai/öpw7rta  of  the  Greeks,  is 
"justitia."  2  But  "amare"  signifies  "felicitate  alterius 
delectari,"  or  "felicitatem  alienam  asciscere  in  suam." 
Accordingly,  Leibnitz's  "vir  bonus"  comprises  the 
"social"  man  of  Grotius;  but  ethically  the  concept  goes 
beyond  it.  "Jus"  is  "qua'dam  potentia  moralis," 
while  "obligatio"  is  "necessitas  moralis";    but  for  the 

1  London  1792;  German  translation  l)y  Salzmann,  1793,  2  vols. 
In  regard  to  the  authoress  see  Helen  Zimmern,  "Mary  WoUstone- 
craft," "Deutsche  Rundschau,"  Vol.  GO,  Berlin  1889,  pp.  247-259. 

^Therefore  "justitia"  is  "charitas  sapientis,  hoc  est  sequeiitem 
sapientiae  dictata."  "Dc  notionil)us  juris  et  justitise,"  Leibnitz, 
edited  by  J.  R.  Krdmann,  Berlin  1840,  p.  118.  See  also  "Definitiones 
ELthicce,"  Erdniann,  edit.  p.  670:  ''Jiisti  scientiam  voco  seu  ejus 
quod  viro  bono  i)ossibile  est,"  "scientiam  offkionun  voco  seu  ejus 
f|U()d  \iro  bono  inipossibile  ct  necessarium,  id  est  ommissu  impos- 
bibilc    C.St."     Mollat,    "Rechtsphilosophisches    aus    Leibnizens    un- 


§30]    LEGAL  PHILOSOPHY  IN  GERMANY      157 

"vir  bonus,"  "moralis"  and  "naturalis"  ^  are  one. 
Here  the  "jus  naturae"  has  its  origin;  it  appears  in  three 
stages,  "gradus":  "jus  strictum"  as  referring  to  "justi- 
tia  commutativa" ;  "sequitas,"  with  regard  to  "justitia 
distributiva" ;  and  "pietas  (vel  probitas),"  appHcable  to 
"justitia  universalis,"  From  these  are  developed  the 
three  fundamental  legal  injunctions:  "neminem  laedere," 
"suum  cuique  tribuere,"  and  "honeste  (vel  potius 
pie)  vivere."  ^  In  contrast  to  Pufendorf,  Leibnitz 
secularizes  ethics  and  associates  it  intimately  with  law. 
The  wise  man  is  the  just  man.  Justice  leads  to  neigh- 
borly love  as  well  as  to  personal  happiness,'  and  happi- 
ness is  a  "constant  state  of  pleasure."  *     As  applied  to 

gedruckten  Schriften,"  Leipzig  1885,  appendix,  p.  85.  See  also 
"Brief  an  Conring"  (Gerhardt  edition,  I,  p.  160):  "homo  prudens 
debet  semper  agere  quod  justum  est." 

^  "De  Notionibus  Juris  et  Justitiae,"  Erdmann  edition,  p.  118. 

2  "De  notionibus  Juris  et  Justitiae,"  pp.  119,  120.  "Initium 
institutionum  juris  perpetui,"  Mollat,  "Rechtsphil.,"  etc.,  p.  6; 
"De  tribus  juris  naturae  et  gentium  gradibus,"  Mollat,  pp.  13-21. 

^  "Definitiones  Ethicse,"  Erdmann  edition,  p.  670:  "Justitia  est 
Caritas  sapientis.  Caritas  est  benevolentia  generalis.  .  .  .  Quis- 
quis  est  sapiens,  amat  omnes.  .  .  .  Omnis  sapiens  niultis  prodest. 
Omnis  sapiens  Deo  amico  est.  Omnis  Dei  amicus  est  felix.  Quo 
quis  sapientior  hoc  felicior  in  potentia  pari.  Omnis  sapiens  est 
Justus.  Omnis  Justus  est  felix."  ("Sapientia,"  so  often  emphasized 
by  Leibnitz,  originates  with  Cicero.)  "Wisdom  is  merely  the  science 
of  happiness  that  teaches  us  how  to  achieve  happiness."  "Von  der 
Glückseligkeit,"  Erdmann  edit.,  p.  671.  "Justitia  est  Caritas  sapien- 
tis." "De  Justitia,"  1;  Mollat,  "Rechtsphil.,"  etc.,  p.  36.  "Caritas 
est  habitus  amandi  omnes  sen  benevolentia  universalis  suis  tamen 
gradibus  pro  ratione  objecti  discreta."  "De  Justitia,"  3;  Mollat, 
"Rechtsphil.,"  etc.,  p.  37.  "Quia  Deus  existit,  ideo  sapienti  licet 
liberrime  exercere  caritatem."  "De  Justitia,"  8;  Mollat,  "Rechts- 
phil.," etc.,  p.  40.  "Et  tanto  quisque  magi  Justus  est,  quanto  magis 
delectatur  communi  bono.  .  .  ."  "Initium  institutionum  juris 
perpetui,"  Mollat,  "Rechtsphil.,"  etc.,  p.  3. 

*  "Von  der  Glückseligkeit,"  Erdmann  edit.,  p.  671. 


158  CIVIC   EMANCIPATION  [Ch.  V 

the  principles  of  human  conduct  the  will  of  God  and 
human  reason  coincide.^  Leibnitz's  definition  of  human 
justice  is  far  more  subtle  than  that  of  Thomasius: 
"Justus  ea  voluntate  praeditus  erit,  qualem  omnes  eius 
esse  vellent,  qui  ipsos  regit."  ^  His  formulation  of 
"a?quitas"  ^  approaches  that  of  Thomasius  for  justice: 
"Quod  tibi  non  vis  fieri,  aut  quod  tibi  vis  fieri,  neque 
aliis  facito  aut  negato."  *  Yet  Leibnitz  holds  to  the 
utilitarian  principle  of  the  happiness  of  the  greatest 
number:  "Summa  juris  regula  est:  quicquid  publice 
utile  est,  illud  faciendum  est."  ^  In  contrast  to  Spinoza's 
stern  principle  of  causality,  Leibnitz  emphasizes  the 
teleological  factor.  Yet  he  is  far  from  being  a  utili- 
tarian in  the  ordinary  sense.  He  distinguishes  between 
justice,  which  in  his  view  belongs  to  ethics,  and  politics, 
for  which  the  test  of  utility  is  decisive:  "Scientia  .  .  , 
Juris   naturae  .   .   .  Ethica   est,    de   justo,  .  .   .  Politica 

1  "Voluntas  Dei  easdem  quas  sapientia  nobis  agendi  regulas 
praescribit."  "De  Justitia,"  7;  Mollat,  "Rechtsphil.,"  etc.,  p.  39. 
"It  is  a  weakness  to  rejoice  in  the  misfortune  of  another,  and  it  is  a 
virtue  to  rejoice  in  the  good  fortune  of  another.  This  principle 
means  that  God  himself  acts  according  to  justice  and  would  be 
blameable  iJ  he  would  act  otherwise,  although  he  has  nothing  to 
fear  or  to  hope  from  the  issue.  This  principle  applies  also  to  men." 
"Axiomes  ou  principcs  du  droit";  Mollat,  "Rechtsphil.,"  etc.,  p.  54. 
See  also  "Meditation  sur  la  notion  commune  de  la  justice";  Mollat, 
"Rechtsphil.,"  etc.,  pp.  56-81  on  j).  02,  "Justice  is  merely  that 
which  conforms  to  wisdom  and  nuTcy  couihincd." 

^"Initium  in>liluli(jnum  juris  jjirpctui";  iUo//«/,  "Rechlspiiil.," 
etc.,  p.  3. 

^ ' Tlic  principle  of  cciuil)',  f)r  \\]ia(  anionnls  lo  ihc  same,  equajity"; 
"tlic  rule  <ir(i|iiily  or  (.'(lualilN  ."  "Mrditalion  sur  la  notion  com- 
iiuinc  (If  la  ju^lice";    MollctI,  "  i\((lilsi)hil.,"  clc.,  ]).  70. 

''  "Mi'dil.ition  sur  la  ii(ilii>n  (\r  la  justice";  Mollat,  "i^echtsi)hil.," 
etc.,  \>.  7(1. 

'•  Mollat,  "Reclils|)liil.,"  I'lc,  appendix    II,   p.  SC>. 


§30]    LEGAL  PHILOSOPHY   IN  GERMANY      159 

est,  de  ulili  .  .  ,"  ^  Three  motives,  "principia,"  ini])el 
man  to  right  action,  "ad  juste  agendum":  the  familiar 
self-interest,  "utilitas  propria";  altruism  on  tlie  basis 
of  sympathetic  emotion,  "sensus  humanitatis  atque 
honcsti";  and  religion,  "religio."  ^  The  freedom  of  the 
will  is  defined  by  Leibnitz  as  the  spontaneous  eictivity 
of  a  rational  being. 

Under  the  pseudonym,  Ca^sarinus  Furstenerius,  Leib- 
nitz wrote  the  "Tractatus  de  jure  suprematus,  ac  lega- 
tionum  principum  Germania."  ^  The  author  as  a 
Christian  and  patriot  advocates  a  political  ideal  of  an 
imperial  world-monarchy.  The  leading  ideas  of  the 
work  are  thus  summarized:"^  (1)  "Imperatorem  atque 
imperium  in  orbe  Christiano  non  tantum  dignitatis 
praerogativam  habere,  sed  et  jus  Advocati  Elcclesiae 
Universalis,  eoque  nomine  quandam  potestatem  extra 
Imperii  quoque  ditiones  sese  extendentem" ;  (2)  "Elec- 
tores  recte  sequiparari  Regibus";  (3)  "Non  debere 
negeiri  Electoribus  ac  ]irincipibus  Imjierii  primariis  quod 
conceditur  principibus  Italis  quos  non  minus  Imperio 
nostro  obnoxios  obstrictosque  esse  constat."  '^ 

1  I,  "Brief  an  Coiiring"  (Gerhardt  edit.,  I,  p.  159). 

-  Mollat,  "Reciitsphil.,"  etc.,  appendix  V,  pp.  95,  96. 

3  First  edit.,  1G77.  This  is  reprinted  in  Klopp's  Edit.,  Vol.  4, 
pp.  9-305.  See  also  "Leibnitii  ad  Ctesarini  Furstencrii  de  suprematu 
Ubrum  explicandum  atque  defendendum  opuscula,"  Klopp,  Vol.  4, 
pp.  309-363;  Ilartmann,  "Leibniz  als  Jurist  und  Rechtsphilosoph" 
(Festgabe  der  Tübinger  Juristenfakultät  für  Ihering,  August  2, 
1892),  pp.  51-60. 

*  "De  Caesarino  Furstenerio  judicium,"  Klopp,  Vol.  4,  pp.  324, 
325.  Also  "Tractatus,"  chaps.  XXXI-XXXVI.  See  also  "Brief 
von  Leibniz  an  Hobbes,"  July  13-22, 1670  (Gerhardt  edit.,  I,  p.  S3): 
"Cum  Deus  sit  omnium  Monarcha  communis." 

^  In  the  letter  to  Conring  of  Jan.  3,  1678,  Leibnitz  expresses  him- 
self approvingly  of  the  book,  the  authorship  of  which  he  docs  not 
acknowledge.  "Multa  alia  in  illo  libello  non  contemnenda  anim- 
adverto;    sunt  tarnen  et  alia  crepera  non  nihil  et  dubitationi  ob- 


160  CIVIC  EMANCIPATION  [Ch.  V 

Leibnitz  makes  the  freedom  of  the  will  equivalent  to 
the  spontaneous  expression  of  a  being  endowed  with 
reason.^ 


2 :  Wolff.  The  influence  of  Leibnitz's  philosophy  of 
law  and  government  was  due  to  the  form  given  it  by 
Christian  Wolff  (1679-1754).  His  great  work  on  natural 
law "  appeared  in  nine  large  volumes;  but  he  also 
published  in  his  "Institutionen"  ^  a  summary  of  this 
tediously  diffuse  treatise.  Wolff's  philosophy  of  law  is 
closely  connected  with  his  ethics.*  The  primary  ethical 
principle  is  the  highest  earthly  good.  "As  nature  makes 
it  incumbent  upon  men  to  perfect  themselves^  and  their 
condition,  and  to  avoid  whatever  detracts  from  such 
perfection,''  there  arises  the  precept,  as  a  rule  of  nature, 
to  do  that  which  makes  for  the  improvement  of  one's 
self  and  one's  condition,  and  to  avoid  that  which  makes 
against  it."  ^  This  moral  principle  he  regards  as 
applying  to  all  practical  life,  including  the  province  of 

noxia  (!),"  and  he  emphasizes,  "Mihi  in  hoc  Hbcllo  ilhid  in  primis 
placet,  quod  monstrat  Principes  noslros  nihilo  inferiores  habendos 
Principibus  ItaUse"  (Gerhardt  edit.),  I,  pp.  188  seq. 

^"Liberias  est  spontaneitas  intelligentis,  itaque,  quod  spon- 
tancumo  est  in  bruto  vel  alia  substantia  intellectus  experte,  id  in 
honiino  \v\  in  aha  substantia  intelligente,  altius  assurgit  et  liberum 
appellatur."     "De  libertatc,"  Erdmann  edit.,  p.  669. 

^  "Jus  naturae  methodo  scientifica  pertractatum,"  1740-1749. 

^  Institutiones  juris  naturce  et  gentium,  "in  quibus  ex  ipsa  hom- 
inis natura  continue  nexu  omnes  obligationes  et  jura  omnia  dcdu- 
cuntur."     Halse  Magdcburgicae  1754. 

*  Wolff ,  "Vernünftige  Gedanken  von  der  Menschen  Tun  und  Las- 
sen, zur  Beförderung  ihrer  Glückseligkeit  den  Liebhabern  der 
Wahrheit  mitgeteilt."     Fifth  edit.,  Frankfurt  and  Leipzig,  1736. 

'"Vernünftige,"  etc.,  preface,  p.  1:  "Unhappy  times  are 
the  fruit  of  vice,  and  happy  times  the  fruit  of  virtue.  Both  state- 
ments are  established  in  present  deed." 

'  "Vernünftige,"  etc.,  pj).  7S-116. 

^  "Vernünftige,"  etc.,  p.  \i\,  §  19.     Also  §§  12,  17. 


§30]    LEGAL  PHILOSOPHY   IN   GERMANY      161 

law.  "Natural  law"  thus  arises  upon  an  ethical  basis, 
and  specifically  from  the  sense  of  duty.  The  command 
of  nature,  "Perfect  thyself,"  "Perfice  te  ipsum,"  is  at 
once  a  direction  for  physical  and  moral  self-development 
and  the  fundamental  principle  of  justice.^  Duties  are 
divided  into  those  towards  ourselves,  towards  our 
fellow-men,  and  towards  God.-  But  a  duty  also  involves 
a  right;  and  man  may  claim  respect  for  these  rights 
because  the  right  is  involved  in  the  duty,^  and  indeed 
is  an  issue  thereof.  Hence  human  duties  have  their 
correlatives  in  inherent  and  inalienable  human  rights.^ 
Compulsory  duties  fall  to  the  province  of  law  and 
justice.^  The  principle  is  "quod  jure  tuo  tibi  non  vis 
fieri  ab  altero,  id  nee  alteri  faciendum  esse,  et  quod  jure 
vis  fieri,  id  alteri  quoque  faciendum."  ^ 

The  State  arises  from  contract,''  its  object  is  to  pro- 
mote peace,  security,  and  the  self-sufficiency  of  all  its 
members,  "sufficientia;"  and  to  grant  abundantly, 
"abundantia,"  the  satisfaction  of  the  needs  and  con- 
veniences of  life.  The  common  weal,  "salus  civitatis," 
rests  upon  the  enjoyment  of  a  contented  life  of  peace  and 
security.^  This  conception  of  self-content  introduces 
an  unexpected  idyllic  flavor  into  the  philosophy  of  law. 
The  practical  importance  of  Wolff's  philosophy  is  due 
to  its  acceptance  as  a  philosophic  foundation  of  an 
enlightened  absolutism,  pervaded  by  the  spirit  of  ethical 
discipline  and  a  closely  regulated  paternalism. 

iSee  "Jus Natur«,"  P.  I.,  §§  173,609;   "Institutiones,"  etc.,  §  36. 
*"Institutiones,"  P.  I.,  chaps.  IV,  V,  VI. 

3"Jus  Naturae,"  P.  I.,  §§170,  608  seq.;  "Institutiones,"  P.  I., 
chaps.  IV,  V,  VI. 

*  "Jus  Nature,"  P.  I.,  §§  23  seq.,  64,  72;  chaps.  II,  III,  IV. 
^"Inst.,"  P.  I.,  chaps.  Ill  seq. 
«"Inst.,"  P.  I.,  chap.  Ill,  §73. 

7  "Inst,"  §§972  and  8.36. 

8  "Inst.,"  §§  972  and  836,  87,  837. 


162  CIVIC  EMANCIPATION  [Ch.  V 

The  emancipation  of  the  third  estate  was  brought  about 
by  three  distinct  factors;  as  the  demand  of  revolution- 
ary violence,  sponsored  philosophically  by  Rousseau  in 
his  "Discours";  as  the  free  concession  of  monarchs 
concerned  in  the  welfare  of  their  subjects,  brought 
about  by  Wolff's  philosophy;  and  in  compliance  with 
the  demands  of  justice  as  theoretically  formulated  by 
Kant  in  his  conception  of  the  legally  constituted  State. 
These  three  factors  —  arbitrary  injustice,  benevo- 
lence, and  an  ethical  sense  of  justice  —  formed  the 
psychological  motives  which  led  to  the  establishment 
of  the  liberty  and  rights  of  the  third  estate,  and  to 
the  recognition  in  modern  times  of  an  independent 
citizen-class, 

3:  Frederick  THE  Great.  Frederick  the  Great  (1712- 
1786)  has  left  his  impress  upon  legal  philosophy  through 
his  writings,  through  the  principles  which  he  applied 
as  a  ruler,  and  through  the  code  of  the  common  law  of 
Prussia  compiled  at  his  instigation.  In  the  "Anti- 
machiavel  (1739),"^  Frederick  combats  Machiavelli's  "II 
Principe."  As  a  criticism  it  fails  of  its  purpose  in  that 
Frederick  shows  no  appreciation  of  the  Italian  author 
as  a  distinctive  type  of  the  Renaissance;  but  his  philo- 
sophic grasp  of  governmental  institutions  is  clearly 
shown.  He  expresses  his  firm  opposition  to  the  self-cen- 
tered attitudes  held  by  tlic  princes  of  his  time.  His 
own  position  is  summed  u])  in  his  familiar  saying  that 
"the  ]M'incc  is  not  the  absolute  ruler  of  his  people  but  its 

*  This  is  printed  in  French  in  the  "Oeuvres  do  Frederic  le  Grand," 
Vnl.  VIII,  Berlin  1848,  pp.  .'59-162:  "L'Antiniachiavel  on  examen 
(In  prince  de  Machiavel";  and  witli  this,  ])p.  Kili  299  "Refutation 
(hi  prince  de  Machiavel."  One  ethtion,  Amstelaedami  1743,  is 
{•rlii((l  in  Latin  by  Johannes  Fridericus  Behrendt,  and  is  dedicated 
to  I-'redericlv  the  C.reat.  Ilsthleis  "Anti-Machiavellus,  sive  speci- 
men disriuisitionum  ad  principem  Machiavclli." 


§30]    LEGAL  PHILOSOPHY   IN  GERMANY      1Ü3 

foremost  servant";^  the  prince  is  the  protector  of  jus- 
tice.- ^  The  same  thought,  that  the  welfare  of  ilie 
State  does  not  turn  upon  the  interests  and  desires  of  its 
ruler,  but  upon  the  consideration  of  an  organically 
united  people,  pervades  his  earlier  work:  "Considera- 
tions sur  I'etat  du  corps  i)olitique  de  I'Europe,"  as  well 
as  his  later  works:  "Miroir  des  princes"^  (1744), 
"Memoires  pour  servir  ä  I'histoire  de  la  maison  de 
Brandebourg"  ^  (1751),  and  the  "Essai  sur  les  formes 
du  gouvernement  et  sur  les  devoirs  des  souverains"'' 
(1777).  He  became  an  exemplar  to  princes  by  replacing 
the    inconsiderate    self-seeking    of    the    absolute    ruler 

'"It  is  true  that  the  sovereign,  far  from  being  the  absolute 
master  of  the  people  who  are  under  his  rule,  is  but  their  foremost 
servant."  "Oeuvres,"  \'ol.  VIII,  pp.  65  seq.,  "Antimachiavellus," 
cap.  I:  "Rex  tantum  abest,  ut  plcni  arbitrii  dominus  sit  populorum 
dictioni  suse  subjectorum,  ut  primi  tantum  magistratus  locum 
tueatur." 

-"One  may  then  say  that  it  is  justice  that  should  be  made  the 
chief  concern  of  the  sovereign;  it  is  the  welfare  of  the  people  that 
should  determine  what  he  is  to  prefer  above  all  other  interests." 
"Oeuvres,"  Vol.  VIII,  p.  65.  "Antimachiavellus,"  chap.  I:  "In 
justitia  igitur  administranda  maxima  Principiis  cura  versatur, 
commoda  ergo,  quibus  praeest,  populorum,  omnibus  aliis  utilitatum 
rationibus  prseferct." 

3  "Memoires  de  Brandebourg,"  "Oeuvres,"  Vol.  I,  p.  123:  "A 
prince  is  the  first  servant  and  the  first  magistrate  of  the  State." 

*  "Miroir  des  princes  ou  instruction  du  roi  pour  le  jeune  due 
Charles-Eugene  de  Würtemberg,"  "Oeuvres,"  Vol.  IX,  Berlin  1848, 
pp.  1-7. 

^  I  am  using  the  edition  in  three  volimies,  Berlin  1846.  The 
"Memoires"  also  appear  in  Vol.  I  of  the  "Oeuvres  de  Frederic  le 
Grand,"  Berlin  1846.  Their  contents  are  mainly  cultural  and 
historical. 

6  "Oeuvres,"  Vol.  IX,  pp.  193-210;  particularly  pp.  199-201; 
pp.  200  seq.:  "The  prince  is  to  the  society  which  he  governs  what 
the  head  is  to  the  body;  he  should  sec,  think,  and  act  for  the  whole 
community  in  order  to  secure  all  available  advantage." 


164  CIVIC  EMANCIPATION  ICh.  V 

by  the  ideal  of  a  monarch  inspired  by  a  consciousness  of 
the  important  duties  of  his  exalted  position.  His  politi- 
cal views  are  in  harmony  with  his  general  system  of 
ethics,  from  which  doubtless  they  arose.  In  his  "Epitre 
au  marechal  Keith"  he  sets  forth  that  the  pre-eminent 
value  of  virtue  lies  in  its  disinterested  exercise  and  not 
in  its  extraneous  advantage.^ 

Frederick  did  not  stop  at  theory  but  exemplified  his 
principles  in  his  actions.  His  reign  was  dignified 
throughout  by  the  fundamental  purpose  to  strengthen 
Prussia.  He  was  able  by  means  of  necessary  wars  to 
make  Prussia  a  respected  figure  in  the  European  concert 
of  nations.  In  his  internal  policy  he  carried  forward 
various  governmental  measures,  pursuing  them  with 
extraordinary  energy.  He  promoted  the  development 
of  the  economic  and  intellectual  resources  of  the  country, 
maintained  justice  and  order,  increased  the  comfort  of 
his  subjects,  and  improved  and  extended  their  produc- 
tive activities.  Frederick  became  the  first  successful 
defender  of  the  form  of  government  not  very  happily 
styled  "enlightened  despotism  or  absolutism"  —  for  the 
despot  ever  remains  the  tyrannical  ruler,  while  Frederick 
was  an  absolutist  cherishing  the  interests  of  his  people. 
He  had  a  care  for  freedom  of  thought  and  conscience, 
and  encouraged  a  more  enlightened  view  of  political 
offenses.  He  became  the  sponsor  for  the  intellectual 
culture  of  his  day. 

The  Prussian  code,  "Landrecht,"  which  was  completed 
and  introduced  (1794)  after  Frederick's  death,  was  the 
first  attempt  to  combine  the  i)rinci])les  of  Roman  law 
with  the  Teutonic  legal  atlitude,  and  served  as  a  model 
for  laier  cfforls.  Despite  its  s])irit  of  benevolent  ])ater- 
naHsni  and  its  somewhat  needless  argument  at  i\c  ex])osi- 
tion,    the    Prussian   code    is    a  notable  contribution  to 

»"Oeuvres,"  \<)1.  X,  Hcrlin  1S94,  pp.  194-203. 


§31]  MERCANTILISTS  AND  PHYSIOCRATS      165 

legislation  in  that  it  is  permeated  with  the  spirit  of  justice. 
It  is  a  law  considerate  of  conditions,  awarding  to  each  his 
due,  and  inspired  with  that  spirit  of  freedom  of  conscience^ 
that  leaves  to  the  individual  ample  scope  for  social  and 
intellectual  initiative.  The  Prussian  code  practically 
solved  the  avowed  purpose  of  providing  "good  and  fair 
laws,  clearly  and  definitely  drawn,"  It  is  an  organic 
document,  inspired  by  a  singleness  of  purpose.  Its 
language  is  clear,  simple,  and  intelligible,  very  different 
from  the  technical  phraseology  of  modern  German  law. 
Owing  to  these  advantages  of  content  and  form,  the 
principles  and  definitions  of  the  Prussian  "Landrecht" 
entered  into  the  consciousness  of  the  people.  The  code 
formed  a  legislation  for  the  people,  while  the  present 
German  Civil  Code  ("Das  Bürgerliche  Gesetzbuch") 
will  ever  remain  the  special  property  of  jurists. 

§  3L  Mercantilists  and  Physiocrats.  1:  The  Sys- 
tem OF  Colbert.  From  the  time  when  political  economy 
began  to  be  a  science  to  the  days  of  Smith  and  Ricardo, 
its  classical  representatives,  the  various  systems  exhibit 
errors  and  misleading  deductions  in  detail  as  well  as 
in  general  theoretical  and  practical  issues.  But  they 
had  the  advantage  over  the  economic  science  of  today 
in  recognizing  that  the  prosperity  of  economic  relations 
depends  upon  property;^  that  the  subject  of  economics 
is  national  wealth;  and  that  national  economics  must 
accept  the  national  w'elfare  as  its  first  and  chief  con- 
cern. The  misleading,  artificial  and  false  notion  that 
human  needs  furnish  the  basis  for  a  science  of  economics 
first  appeared  towards  the  end  of  the  nineteenth  and  the 

^  Freedom  of  conscience  is  specifictilly  guaninteed  by  the  Prussian 
"Landrecht,"  Vol.  II,  Tit.  11,  §§30  seq.;  Tit.  12,  §§  10,  11.  See 
also  Vol.  I,  Tit.  4,  §  9. 

^  See  Berolsheinier,  "Das  Vermögen,"  Hirth's  Ann.  1904,  pp.  437- 
441. 


166  CIVIC   EMANCIPATION  [Ch.  V 

beginning  of  the  twentieth  century,  a  period  of  feeble 
philosophic   insight  and  misapplied  constructive  effort. 

So  far  back  as  the  mercantile  system  associated  with 
the  name  of  Colbert  —  which  prevailed  from  the  six- 
teenth to  the  end  of  the  eighteenth  century  —  the  lead- 
ing question  was  that  of  national  welfare;  and  the 
increase  of  the  assets  of  the  people  was  regarded  as  the 
worthiest  purpose  of  economics.  Accordingly  an  attempt 
was  made  to  determine  the  fundamental  factors  of  pros- 
perity. In  those  days  men  proceeded  not  upon  scientific 
or  theoretical  arguments,  but  upon  a  consideration  of 
practical  ends.  Princes  needed  money  to  carry  on  wars 
and  to  meet  the  luxury  of  extravagant  courts.  For  the 
mercantile  system  national  prosperity  was  equivalent 
to  a  full  treasury  for  State  and  Court ;  and  the  primary 
problem,  as  likewise  the  worthiest  object  of  economics, 
was  to  bring  prosperity  and  gold  to  the  country.  Out 
of  this  need  grew  the  protection  of  those  days  —  a 
favoring  of  trade  and  of  the  productive  industries,  and 
likewise  the  restrictive  policy,  the  interdiction  of  ex- 
portation of  raw  materials  and  precious  metals.  The 
economic  life  was  not  conceived  as  that  of  a  living  or- 
ganism but  as  a  mighty  reservoir  to  supply  the  public 
and   private  expenditures  of  the  rulers. 

The  principles  of  this  political  policy  were  not  theoreti- 
cally taught  but  praclically  followed.  Of  the  literary 
contributions,  the  so-called  "political  testaments,"  of 
which  there  are  three,  should  l)c  mentioned;  one  is 
attributed  to  C^xrdinal  Riciiici.nai  (1585-1642);  another 
to  Colbert  (1619-1683);  and  a  third  to  Louvois  (1641- 
1691).'     The  genuineness  of    the  first  is  disputed";    the 

'  "Tcstanunl  ])()Iiliqiic  dii  ("ardinal-duc  de  Ivitlullcii,"  16(S<S. 
The  C'dilioii  licrore-  iik-  is  llif  cij;lilli,  in  two  \()luines,  The  Hague 
1740. 

"TeslaiiHiiI  ]]i)liii(|iic  i\i-  jian  l)a[)listc  C'()llK.'rt ,"  The  Hague 
1G93. 


§  31]  MERCANTILISTS  AND  PHYSIOCRATS      107 

other  two  were  composed  by  Sandras  de  Courtilz/  and 
are  more  in  the  nature  of  questionable  historical  sketches 
than  of  political  works.-  In  the  ninth  chapter  of  the 
"testament,"  attributed  to  Colbert,  the  ruler  is  urged 
to  win  the  regard  of  his  subjects;^  but  the  precept 
leads  to  no  notable  consequences. 

2:  QuESNAY  AND  OTHER  PHYSIOCRATS.  The  physi- 
ocrats,"*  particularly  Quesnay  (1694-1774),  the  founder  of 
this  school,  transferred  the  position  of  the  Stoics  to  the 
theory  of  economic  forces.  Just  as  Spinoza,  in  so  far  as  he 
is  consistent,  applied  the  laws  of  nature  to  the  conduct 
of  men  and  to  "natural  law,"  just  as  inore  recently 
Gumplowicz  looked  upon  the  individual  as  coming  under 
the  dominion  of  objective  laws,  so  Quesnay  believed 
in  natural  laws,  by  virtue  of  which  the  economic  con- 
ditions and  changes  were  definitely  determined.  Such 
a  naturalistic  conception  tends  to  favor  fatalism  and 
determinism  and  a  policy  of  resignation.  For  if  mate- 
rial laws  constitute  the  decisive  factors  affecting  the 
growth  and  nature  of  human  effort,  the  individual  be- 
comes the  helpless  and  impotent  plaything  of  natural 

"Testament  politique  du  Marquis  de  Louvois,"  1693.  The  edition 
I  am  using  is  Cologne  1695;  in  that  Part  I,  pp.  1-381,  give  a  purely 
historical  exposition. 

1  R.  V.  Mohl,  "Die  Geschichte  und  Literatur  der  Staatswissen- 
schaften," 3  vols.,  p.  405. 

^  Colbert's  "Testament"  bears  in  the  very  title  the  remark:  "Testa- 
ment pol.  ...  in  which  appears  all  the  events  of  the  reign  of  Louis 
le  grand  up  to  the  year  1684.  With  remarks  on  the  government  of 
the  kingdom."  The  first  six  chapters  are  historical,  and  the  others 
contain  not  much  else. 

^  Chapter  IX  treats  of  the  love  which  the  monarch  owes  to  his 
subjects  (and  also  of  taxes!).  See  p.  444:  "A  prince  should  seek 
to  reign  in  the  hearts  of  his  subjects  rather  than  to  subdue  their 
wills  by  the  fear  of  his  authority." 

^  See  Turgot's  chief  work,  "Reflexions  sur  la  Formation  et  la  Dis- 
tribution des  Richesses." 


168  CIVIC  EMANCIPATION  [Ch.  V 

forces,  —  a  passive  instrument  of  a  universal  natural 
order.  Quesnay,  however,  used  the  assumption  of  an 
all-conditioning  "natural  law"  as  an  incentive  to  effort, 
as  a  means  for  establishing  an  intellectual  ideal  and  for 
determining  the  measures  which  shall  advance  men 
towards  that  ideal.  This  aspect  of  the  physiocratic  sys- 
tem favors  the  suspicion  that  their  "natural"  economics 
was  something  different  from  what  its  literal  interpre- 
tation seemed  to  indicate;  and  such  is  really  the  case. 
The  basis  of  the  physiocratic  position  is  negation.  It 
is  primarily  a  protest  against  the  system  of  protection  and 
trade  restriction  of  the  mercantilists.  For  the  correct  com- 
prehension of  this  system  an  introductory  consideration 
is  necessary.  Quesnay's  doctrine  holds  that  the  effort 
of  rulers  and  their  officials  to  regulate  the  economic 
life  according  to  their  standards  are  futile  and  perni- 
cious, for  no  human  interference  can  permanently  and 
enduringly  influence  the  operation  of  natural  laws  and  the 
prescribed  order  and  relation  of  economic  forces.  In- 
stead of  attempting  to  correct  such  natural  laws,  the 
proper  goal  is  to  place  economics  in  harmony  with  them ; 
thereby  will  the  "ordre  naturelle"  be  achieved.  Such 
a  condition  would  be  the  most  favorable,  for  it  would 
be  in  accord  with  "natural  law."^  Thus  interpreted, 
the  physiocratic  doctrine  becomes  an  economic  declara- 
tion of  independence  directed  against  the  protective 
and  exclusive  dominance  of  self-seeking  monarchical 
ruk'.- 

The  doctrine  of  the  dominance  of  natural  law  in 
human  affairs  is  ihc  "illusion"  b>-  means  of  which  the 

'  "Tlio  pliysical  laws  which  constilulr  ihc  nalural  order  most 
aflvanlaK<'<)iis  for  llif  human  race  and  wliicli  confirm  the  natural 
law  of  all  nicn."  .   .   .     Oncsnay,  "Ocuvrt-s,"  hy  A.  Onckcn,  p.  Ö45. 

"^ Bauer,  "Zur  KntstehunK  dor  Physiokratie,"  emphasizes  that  the 
views  of  the  physiocrats  "grew  upon  the  soil  of  the  Revolution." 


§31]  MERCANTILISTS  AND  PHYSIOCRATS      169 

economic  freedom  of  the  citizens  or  subjects,  as  against 
the  authority  of  the  monarch,  was  first  explicitly  real- 
ized. From  this  follows  the  fundamental  position  of  the 
physiocrats  that  the  State  should  in  no  manner  inter- 
fere with  economic  life,  but  should  permit  freedom  of 
unrestrained  competition:  "The  natural  safeguard  of 
business  lies  in  the  free  and  unrestrained  competition 
that  secures  for  every  people  the  largest  possible  num- 
ber of  buyers  and  sellers,  and  the  most  advantageous 
price  for  its  sales  and  purchases."  "La  police  naturelle 
du  commerce  est  done  la  concurrence  libre  et  immense, 
qui  procure  ä  chaque  nation  le  plus  grand  nombre  pos- 
sible d'acheteurs  et  de  vendeurs,  pour  lui  assurer  le 
pris  le  plus  avantageux  dans  ses  ventes  et  dans  ses 
achats."^  In  general  the  State  should  limit  its  activity 
to  the  protection  of  the  country  from  external  attack, 
and  to  the  security  of  law  within  its  borders.  The  watch- 
word of  the  physiocrats  is  contained  in  the  phrase  of 
MiRABEAU  (1715-1789) :  "Laissez  faire  et  laissez  passer."  ^ 
Agriculture  ^  was  conceived  to  be  the  root  of  national 

^Quesnay,  "Oeuvres,"  by  A.  Oncken,  p.  656. 

^Oncken,  "Geschichte  der  Nationalökonomie,"  I,  p.  404.  Mira- 
beau,  "L'ami  des  Hommes,"  III,  chaps.  3  and  5.  In  the  latter 
the  removal  of  restrictions  is  demanded  by  reason  of  justice  and 
utility  (pp.  218  seq.,  290-292).  The  principle  of  justice  is  that 
formulated  by  Thomasius:  "Do  not  to  another  what  you  would 
not  have  another  do  unto  you"  (p.  218). 

The  Physiocrats  beHeved  that  the  course  of  trade  was  best  left  to 
organize  itself,  and,  too  optimistically,  considered  that  self-interest 
and  justice  were  in  most  cases  identical.  J.  Bonar,  "Philosophy 
and  Political  Economy,"  p.  14.5. 

^Quesnay,  Article  "Fermiers,"  Extrait  de  I'Encyclopedie  (Ques- 
nay,  "Oeuvres  par  Oncken,"  p.  159):  "Farmers  are  those  who  establish 
and  give  value  to  the  wealth  of  the  country  and  who  procure  the 
most  essential  and  valuable  resources  for  the  maintenance  of  the 
State." 


170  CIVIC   EMANCIPATION  [Ch.  V 

wealth:^  "La  terre  est  l'unique  source  des  richesses"; 
the  cultivation  of  the  soil  must  accordingly  be  relieved 
of  all  burdens  and  taxes.  The  attempts  of  Turcot 
(1727-17S1)  at  legislative  reform  in  the  direction  »of  the 
physiocratic  position  failed  by  reason  of  the  opposition 
of  the  French  ruling  classes.  It  was  in  Ciiina-  that 
Quesnay  thought  to  have  found  a  model  State 
incorporating  the  physiocratic  views;  and  therefore 
he  looked  upon  despotism  as  it  existed  in  the  Chinese 
Empire  as  the  ideal  government.  It  was  because  of 
such  views  that  his  political  influence  during  the  period 
of  the  French  Revolution  was  lessened;^  in  England, 
however,   his   views   found   favor. 

§  32.  The  Classical  Economists:  Adam  Smith:  Ri- 
cardo. 1:  Industrial  Development:  the  Economics  of 
Adam  Smith.  The  mercantile  syvStem  looked  upon  the 
monarch  as  the  central  point  of  governmental  interest; 

Art.  "Grains"  (pp.  193-249).  Included  therein  are  "Maximes 
de  Gouvernement  .Econoniique" ;  pp.  233  seq.  Industrial  labor  does 
not  increase  wealth  (p.  233).  The  wealth  of  the  tillers  of  the  soil 
create  the  wealth  of  civilization  (p.  235).  See  also  pp.  299-304, 
305  seq.,  379-383,  3S4  395. 

Industry  is  never  productive.  See  "L'ordre  Naturel  et  Essentiel 
des  Societes  Politiques"  (in  regard  to  the  author  of  this  work  see 
below,  note  13),  YcjI.  II,  chaps.  52,  53. 

^Quesnay,  "Oeuvres,"  p.  337.  Also  Miraheau,  "L'ami  des 
Hommes,"  I,  chaps.  1,  3,  5,  8.  One  must  increase  the  fertility  of 
agriculture  in  order  to  extend  the  population.  "I. 'ami  des  Hommes," 
I,  chaps.  1,  2.     Also  II,  chap.  VIII,  p.  577. 

^"Despotisme  de  la  Chine"  {Quesnay,  "Oeuvres  par  Oncken,"  pp. 
5Ü3  -660).  The  work  of  Merrier  de  la  Riviere,  which  was  influenced 
by  Quesnay  or  uixiii  whicli  he  ((lilahorated,  is  of  like  tendency.  See 
also  Eisten  in  "I  laiulwriricihucli  der  Staat swissen.schaf ten,"  Vol.  II, 
pp.  717  seq.  "I.'onlic  Nalurelcl  l'".sscnliel  des  Societes  Politi(|ues." 
(Anonynujus,  2  vols.,  I.oiidon  1767.)  Svc  especially  Vol.  I,  cliaps. 
9    12. 

'•^ßditrr,  "Zur  ICntstehung,"  etc.,  p.  157,  noU'  2,  gives  the  opinions 
of   Didtrol    and    llie  l-^ncyclopetlists. 


§32]  CLASSICAL  ECONOMISTS  171 

accordingly  the  wealth  of  the  nation  was  dependent 
upon  the  national  exchequer.  The  physiocrats  attempted 
to  assimilate  human  activity  to  the  type  of  a  depersonal- 
ized nature;  for  them  the  most  important  occupation  was 
that  closest  to  nature.  National  prosperity  was  accord- 
ingly made  dependent  upon  agriculture.  In  England 
l^articularly,  there  emerged  a  new  productive  class, 
the  industrial  class,  whose  status  was  greatly  developed 
and  transformed  through  the  introduction  of  machinery. 
Adam  Smith  (1723-1790)^  became  its  prophet,  and 
Ricardo  its  most  notable  advocate.  According  to  Adam 
Smith,  labor  is  the  basis  for  the  satisfaction  of  human 
needs  and  for  supplying  the  necessaries  and  conveniences 
of  life; 2  and  free  industrial  competition  becomes  the 
fundamental  economic  principle. 

It  may  be  that  unconsciously  the  political  or  partisan 
attitude  of  the  student  eventually  shapes  his  economic 
position.     To    realize    the    exceptional    significance    for 

^Adam  Smith's  well-kiaown  work  is  "An  inquiry  into  tiie  nature 
and  causes  of  the  Wealth  of  Nations"  (5  books),  4  vols.,  177G.  I 
cite  from  the  fourth  edition,  Basle  ISOl.  Lectures  on  justice,  police, 
revenue,  and  arms.  Delivered  in  the  University  of  Glasgow  by 
Adam  Smith.  Reported  by  a  student  in  1763  and  edited  by  Edwin 
Cannan,  Oxford  1896.  (See  Article,  "Adam  Smith,"  in  Handwör- 
terbuch der  Staatswissenschaften,  Vol.  6,  p.  756.) 

^"Wealth  of  Nations,"  Vol.  I,  p.  1.  "The  annual  labor  of  every 
nation  is  the  fund  which  originally  supplies  it  with  all  the  neces- 
saries and  conveniences  ot  life  which  it  annually  consumes,  and  which 
consist  always  either  in  the  immediate  produce  of  that  labor,  or  in 
what  is  purchased  with  that  produce  from  other  nations." 

Hence  the  importance  of  studying  the  organization  of  labor  and 
the  best  division  of  labor  to  increase  productivity.  See  "Wealth  of 
Nations,"  Book  I,  chaps.  1-3,  and  "Lectures  by  Adam  Smith,"  edited 
by   Cannan,   pp.    161-173. 

A  further  source  of  national  wealth  is  thrift.  See  Skarzyuski, 
"Adam  Smith  als  Moial  Philosoph,"  etc.,  Berlin  1878,  p.  372,  where 
he  particularly  emphasizes  this  source  of  national  wealth. 


172  CIVIC  EMANCIPATION  [Ch.  V 

economic  philosophy  of  Adam  Smith  and  Ricardo,  it  is 
necessary  to  appreciate  how  enormously  the  economic 
influence  of  industry  has  been  extended  and  developed 
since  their  day,  and  to  appreciate  further  that  the  inter- 
vening political  development  has  been  one  vast  economic 
struggle.  The  conflict  is  twofold:  the  struggle  of  indus- 
trial capital  for  supremacy  and  recognition  in  law  and 
economics,  and  the  economic  emancipation  of  the 
industrial  laborer. 

The  interests  of  the  rapidly  developing  industries  of 
England  were  directed  not  alone  to  the  provision  of  the 
needs  of  home  consumption,  but  also  to  the  extension 
and  conquest  of  a  world-market.  For  this  there  was 
needed  the  protection  of  the  State  against  hostile  attacks, 
and  a  guaranty  of  peace  and  of  the  trade  and  commerce 
that  flourish  under  peace.  There  was  needed  also  a  legal 
protection  from  within;  for  the  free  circulation  of 
industrial  products  requires  a  prompt  and  certain  jus- 
tice. There  were  needed  cheap  provisions  for  the  masses ; 
for  the  smaller  the  expenditure  upon  which  the  laborer 
can  supply  his  livelihood,  the  lower,  other  things  be- 
ing equal,  may  his  wages  be  maintained,  and  the  more 
favorable  will  be  the  competitive  industrial  condition; 
hence  the  corn  tax,  which  raised  the  price  of  bread,  was 
abolished.  Finally  there  was  needed  freedom  of  con- 
tract to  place  the  capitalists  in  the  position  of  vantage 
as  against  the  economically  weak  laborer.  Such,  in 
outline,  are  the  essential  positions  upon  which  the  advo- 
cates of  free  trade  since  the  days  of  Adam  Smith  base 
their  economic  demands.  The  free  traders  demand  a 
State  of  negative  legal  function,  "Rechtsstaat,"  so  that 
industrial  interests  may  flourish.  The  anti-protectionist 
views  of  the  physiocrats  su])i)()rtcd  the  political  policies 
demanded  by  English  industrialism.  In  view  of  Adam 
Smith's  jjcrsonal  acquaintance  with  Quesnay,  it  is  pos- 


§32]  CLASSICAL    ECONOMISTS  173 

sible  that  he  was  influenced  by  the  pliysiocrats;  it  may, 
however,  be  that  lie  derived  his  economic  position 
directly  from  the  "natural  law"  of  the  preceding  school ; '^ 
yet  the  question  has  but  an  historic  interest.  In  reality 
Adam  Smith's  doctrine  of  economic  freedom  of  oppor- 
tunity formed  a  new  ])rotectionism  in  behalf  of  working 
capital,  especially  of  industry,  including  trade.  While 
previously,  prohibition  or  restriction  of  trade  sought 
the  economic  protection  of  privileged  industrial  classes, 
industrial  freedom  was  now  to  be  made  further  service- 
able by  protecting  class  interests.  This  principle  of  the 
classical  school  was  fundamental  and  distinctive;  and 
its  importance  is  not  altered  by  the  fact  that  Adam 
Smith  regarded  a  protective  tariff  as  justified  -  under 
certain  conditions.  The  protection  of  industry,  and  of 
working  capital  in  particular,  under  the  plea  of  industrial 
freedom,  was  not  a  pure  and  undisguised  expression  of 
class  interest,  but  was  made  to  assume  the  illusory  form 
of  a  plea  for  justice.  According  to  Adam  Smith  and  his 
school,  the  economic  freedom  that  makes  possible  free 
competition  is  a  fundamental  and  natural  right.  "All 
systems  either  of  preference  or  of  restraint,  therefore, 
being  thus  completely  taken  away,  the  obvious  and 
simple  system  of  natural  liberty  establishes  itself  of 
its  own  accord.  Every  man,  so  long  as  he  does  not 
violate  the  laws  of  justice,  is  left  perfectly  free  to  pursue 
his  own  interest  in  his  own  way,  and  to  bring  both  his 
industry  and  capital  into  competition  with  those  of 
any  other  man,  or  order  of  men."'' 

^Hasbacli,  "Untersuchungen  über  Adam  Smith,"  p.  207,  and  (in 
connection  with  Hasbach)  W.Ed.Bierman,  "Staat  und  Wirthschaft," 
p.  61. 

^Booiv  lY,  chap.  2.  See  also  Schiiller,  "Die  klassische  Nationalö- 
konomie und  ihre  Gegner,"pp.  59  seq. ;  and  W.  Ed.  Bierman,  "Staat," 
etc.,  pp.  64  seq.,  75. 

3  "Wealth  of  Nations,"  Book  IV,  chap.  9  (Vol.  3,  p.  308),  and  in 
other  places. 


174  CIVIC   EMANCIPATION  [Ch.  V 

2:  Ricardo.  Tlie  formulation  of  the  principle  of 
industrial  freedom  as  one  of  justice  is  emphasized  by 
Ricardo  ^  (1772-1823).  In  his  theoretical  views  and  eco- 
nomic position  2  he  agrees  entirely  with  Adam  Smith, 
and  advances  the  same  arguments.  He,  too,  stands  for  the 
economic  liberty  of  the  individual  and  for  non-inter- 
ference of  the  State  in  the  affairs  of  economics.  His 
importance  consists  in  his  position  as  a  pioneer  in  estab- 
lishing an  economic  order  on  the  basis  of  natural  law. 
The  advocates  of  natural  law  had  assumed  its  existence, 
and  on  this  assumption  had  founded  what  to  them 
seemed  a  just  model  State.  In  a  similar  spirit  Ricardo, 
as  an  economic  philosopher,  undertakes  to  outline  a 
natural  economic  order  and  to  determine  the  natural 
laws  of  economics,  which  were  also  to  be  the  laws  of 
justice.  Ricardo  represented  the  economic  philosophy 
of  natural  law  par  excellence ;  Adam  Smith  prepared  the 
foundations  therefor,  but  it  remained  for  Ricardo  to 
complete  the  structure. 

^ Schmoller,  "Die  Gerechtigkeit  in  der  Volkswirthschaft,"  1880 
(first  appearance  in  Schmoller's" Jahrbuch")  Vol.  V,  1881,  p.  19;  and 
reprinted  in  Schmoller  "Zur  Sozial-und  Gewerbepolitik  der  Gegen- 
wart" (Reden  und  Aufsätze),  Leipzig,  1890,  p.  205.    He  aptly  says: 

"No  one  was  more  convinced  tlian  Adam  Smith,  Turgot,  and 
some  of  their  true  disciples,  that  the  reforms  which  they  demanded 
would  bring  about  a  more  absolutely  just  distribution  of  property. 
The  faith  in  the  justice  of  their  demands  was  the  strong  point  of  the 
ecouoniics  of  'natural  law.'  It  is  as  a  logical  consequence  of  'natural 
freedom  and  justice'  that  Adam  Smith  demanded  free  trade  and 
unrestricted  commerce.  Free  individual  competition.  ...  is  pre- 
sented by  Ricardo,  the  most  distinguished  disciple  of  Adam  Smith, 
as  a  rlemancl  of  justice  towards  all  working  men."  See  also  Berolz- 
hi'iniff  in  "llirlh's  Annalcn,"  1901,  p.  5'2'.i. 

''I  lis  chief  work  is  "Principles  of  Political  Economy  and  Taxa- 
tion." The  edit  ion  from  which  I  cite  is  "The  works  of  David  Ricardo" 
by  McCnllnrli,  London  184().  (See  the  introdiK  lion  by  tlie  editor  on 
Ricardo's  life  and  writings,  pp.  XV-XXXlll.) 


§  32]  CLASSICAL  ECONOMISTS  175 

An  attempt  to  trace  the  complex  economic  life  back 
to  a  relalively  small  grou])  of  econt^mic  laws,  and  to 
combine  in  a  simi)le  formula  the  intricate  relations  in- 
volved, cannot  cover  all  concrete  situations.  Reality- 
presents  an  indefinite  nimiber  of  grades  and  shades. 
This  intricacy  of  actual  relations  Ricartlo  did  not  ignore. 
On  the  basis  of  his  commercial  experience  he  had  occa- 
sion to  confirm  what  he  well  knew,  that  the  natural 
value  and  price  of  every  article  of  economic  trade  were 
subject  to  large  fluctuations.  But  Ricardo's  method 
was  not  to  determine  statistically  the  average  of  the 
actual  fluctuations  in  value,  and  to  establish  an  ideal 
average  of  the  just  range  of  prices.  On  the  contrary  he 
undertook  in  a  purely  deductive  fashion  to  determine 
their  natural  values.  His  procedure  suggests  that  of 
the  ])hysicist,  who  does  not  determine  the  law  of  gravity 
empirically,  nor  questions  the  correctness  of  the  law  which 
he  deduces,  because  in  the  actual  ])hcnomena,  the  law  of 
gravity  in  consequence  of  friction  does  not  strictly 
apply.  Every  fluctuation  of  the  market  price,  as  com- 
pared with  the  natural  value  and  ])rice,  is  based  upon  the 
effect  of  supi^ly  and  demand.  Under  fluctuating  condi- 
tions the  market  price  varies  above  the  natural  price, 
according  to  the  relation  of  current  demand  and  supply. 
If  conditions  were  steady,  and  supply  and  demand 
remained  in  a  state  of  balance,  then  the  market  price 
would  coincide  with  the  natural  price  and  value. ^  By 
reason  of  competition  the  market  price  ever  tends  to 
approximate  to  the  natural  value.  In  the  determination 
of  these  natural  values  Ricardo  proceeds  uj^on  Adam 
Smith's  principle  that  only  labor  produces  value.  Accord- 
ingly labor,  that  is,  the  average  quantity  and  quality  of 
labor  expended  upon  an  object,  determines  the  value 

-  "Principles,"  chap.  IV. 


176  CIVIC   EMANCIPATION  [Ch.  V 

of  economic  commodities.^  The  central  doctrine  of 
Ricardo's  system  is  his  theory  of  \'alue,  which  forms  the 
introduction  to  his  "Principles."  Adam  Smith  had 
taught  that  a  distinction  should  be  made  between  the 
"value  in  use"  and  the  "\'alue  in  exchange."  Apart 
from  objects  that  cannot  be  duplicated  at  pleasure, 
and  to  which  their  rarity  lends  value  —  notably  works 
of  art  —  and  which  form  but  a  small  portion  of  the 
articles  of  exchange,  and  considering  only  such  products 
as  may  be  indefinitely  reproduced,  it  follows  that  the 
value  of  every  useful  article  of  every  kind  of  wares,  and 
"of  every  commodity  or  the  quantity  of  any  other 
commodity  for  which  it  will  exchange,"  will  be  deter- 
mined by  the  amount  of  labor  necessary  for  the  produc- 
tion of  such  article  without  regard  to  the  scale  of  wages 
paid  for  its  production.'  As  part  of  the  labor  involved 
in  the  production  of  an  article  must  be  considered  not 
alone  the  labor  expended  directly  upon  that  article, 
but  also  a  pro  rata  charge  upon  the  tools,  machinery, 
and  manufacturing  plant  used  in  its  production.^  The 
natural  value  of  commodities,  in  so  far  as  machinery  is 
involved,  will  be  influenced  by  the  fixed  and  working 
capital  and  by  the  permanence  of  such  fixed  capital.^ 
Accordingly  the  cost  of  production  determines  the 
natural  \alue  of  every  commodity,  and  in  this  general 
law  of  \alue  Ricardo  includes  the  value  of  labor.  The 
natural  value  of  labor  thus  consists  in  the  cost  of  pro- 
duction of  the  labor  itself,  that  is,  in  the  cost  of  the 
necessary  maintenance  of   the   laborer   and    his   family. 

^"Lnhour  is  the  ftnonhilio)!  of  the  value  of  roiinnodi/ics,  of  thccx- 
cliaiij4f;iljlc  value  of  all  things.  This  is  Ricardo's  guitliny  iJiinciplc." 
See  "Princi])k's,"  chaj).  I,  p.  10;  chap.  IV,  p.  47. 

^  "Principles,"  ciiaj).  I,  §  1. 

•'" Principles, "  cliaj).    I,    §  .'5. 

*  "Principles,"  chap.   1,    §§  '1,  5. 


§  32]  CLASSICAL   ECONOMISTS  177 

The  natural  wage  is  the  equivalent  of  the  minimum 
cost  of  livelihood  of  the  laborer  necessary  for  the  proper 
enjoyment  of  his  life  and  provision  for  his  family. ^ 
Owing  to  the  law  of  supply  and  demand,  the  market  value 
in  Ricardo's  opinion  can  never  permanently  rise  above, 
or  fall  below  the  natural  value  in  terms  of  labor;  and 
this  for  the  reason  that  every  long-continued  increase 
of  the  market  value  of  labor  above  the  natural  value  of 
labor  will  result  in  an  increased  size  of  the  family,  and 
later  an  increase  in  the  supply  of  labor;  and  on  the 
other  hand,  any  permanent  lowering  of  the  market 
value  of  labor  below  the  natural  price  will  decimate  the 
ranks  of  the  laborer,  and  result  in  a  lowered  supply  of 
the  commodity,  labor,  and  consequently  an  increase 
in  the  market  price  thereof.  This  iron  wage-law,  "eherne 
Lohngesetz,"  condemns  the  laborer  permanently  to  a 
bare  existence  wage,  to  a  slavery  under  productive 
capital.  This  explicit  and  definite  fixation  of  the  natural 
wage,  and  the  resulting  legitimized  exclusion  of  the  great 
mass  of  the  people  from  the  good  things  of  life,  has  been 
decidedly  influential  in  awakening  the  class  conscious- 
ness of  the  proletariat,  in  leading  laborers  to  form 
organizations,  so  that  they  may  successfully  demand  their 
just  share  of  the  profits  of  their  labor.  Indeed  the  posi- 
tion of  Adam  Smith  and  Ricardo,  that  labor  alone  pro- 
duces value,  supports  the  position  of  the  socialists  in 
their  demand  for  an  adequate  compensation  for  the 
wage    earner.     In    the    development    of    his    economic 

^  In  his  essay  on  Ricardo  in  the  "Hand,  der  Staatswis.,"  Diehl 
notes  that  Ricardo  does  not  regard  the  natural  wage  as  the  physio- 
logical minimum  of  existence  and  has  not  carried  out  "the  iron- 
bound"  law  of  wages  consistently.  However,  the  introduction  of 
machinery  resulted,  for  quite  a  time,  in  limiting  the  development  of 
the  wages  of  the  industrial  laborer  to  a  minimum  existence  wage. 
Practice  went  even  beyond  theory. 


178  CIVIC   EMANCIPATION  [Cii.  V 

theory,  Ricardo  endorses  Bentham's  utilitarian  philoso- 
phy of  which  he  became  an  adherent.  The  position 
that  the  self-interest  of  the  individual  coincided  with  the 
general  welfare  was  for  him  an  indisputable  doctrine. 
The  economic  philosophy  of  Ricardo  is  a  utilitarian 
bourgeois  philosophy  reduced  to  simple  terms. 

3:  Say.  J.  B.  Say^  (1767-1832)  cannot  be  regarded 
as  the  author  of  an  influential  and  original  economic 
theory.  His  relation  to  his  eminent  predecessors,  Adam 
Smith  and  Ricardo,  is  similar  to  that  of  Lasalle  to  Marx. 
Say  popularized  the  teachings  of  the  English  free  trade 
school  and  introduced  them  into  France.  In  a  measure 
opposed  to  his  English  predecessors,  Say  repeatedly 
emphasizes  that  the  desire  for  gain  is  not  the  exclusive 
motive  to  be  considered  in  the  economics  of  human 
affairs. 

4:  Malthus.  The  name  of  Malthus^  (1766-1834)  is 
associated  with  an  important  factor  in  the  growth  of 
population  —  a  factor  furthermore  entailing  grievous 
consequences.  The  chief  work  of  Malthus,  "An  Essay 
on  the  Principle  of  Population,"  contains  the  important 
statement  that  population  has  a  tendency  to  increase 
more  rapidly  than  the  means  of  subsistence  necessary 
to    its    maintenance.      This    is    the    Malthusian    law.^ 

'Say's  chief  works  arc.  "Tratte  D'Economie  Politique,  ou  Simple 
Exposition  dc  la  Maniere  dont  se  Forment,  se  Distribuent  ct  se  Con- 
somment  ics  Richcsses,"3  vols.,  first  edition,  Paris  1880.  I  cite  from 
the  fifth  edit.,  Paris  1826.  "Catechisme  D'ficonomie  Politique." 
"Cours  Complct  D'ficonomie  Politique,"  6  vols.,  Paris   1828  29. 

^On  the  jjrinciples  of  the  Malthusian  law  in  Adam  Smith,  see 
Skarzynski,  "Adam  Smith  als  Moralphilosoph  und  Schöpfer  der 
National-ökonomie."     Berlin   1878,   p|).  3(52  364. 

""Sui)posinp;  the  present  population  equal  to  a  thousand  millions, 
the  human  species  would  increase  as  the  numbers  1,2,  4,  8,  16,  32, 
(11,  Tis,  2."i6,  and  subsistence  as  1,  2,  3,  4,  5,  6,  7,  8,  9."  (Bk.  I,  chap. 
II,   p.    I").) 


§32]  CLASSICAL  ECONOMISTS  179 

Moral  restraint,  as  well  as  vice  and  poverty,  are  the 
factors  which  will  equalize  the  increase  of  pü[)ulation 
and  adjust  it  to  the  avaikible  means  of    subsistence.^ 

It  is  as  an  application  of  this  idea  that  the  Neo-Mal- 
thusians  advocate  the  restriction  of  the  family  —  the 
so-called  "two-cliild"  policy  —  and  in  several  countries, 
notably  in  France,  this  has  checked  the  increase  of  the 
population  to  such  an  extent  as  is  likely  in  the  course  of 
time  to  be  momentous  for  the  manning  of  those  coun- 
tries for  defense.  The  teachings  of  Malthus  are  also 
responsible  for  the  misleading  doctrines  which  for  a 
considerable  time  sought  to  check  the  increase  of  the 
population  in  the  interest  of  public  welfare. 

Malthus  represents  a  transition  from  the  classic 
school  to  the  modern  social-ethical  movement,  in  that 
he  emphasizes  altruism  in  economic  policy  as  an  equaliz- 
ing and  mitigating  measure.  He  recognizes  the  hard- 
ships and  injuries  that  arise  from  the  operation  of 
economic  self-interest,  and  studies  the  mutual  relations 
of  self-interest  and  altruism.^  He  belongs  to  the  new 
movement  in  national  economics  for  the  additional 
reason  that  he  pursues  his  in\estigations  upon  an  his- 
torical and  empirical  foundation. 

1  In  Book  I,  chap.  II  (pp.  33,  34),  Makhus  presents  the  following 
propositions:  "1.  Population  is  necessarily  limited  by  the  means  of 
subsistence;  2.  Population  invariably  increases  where  the  means  of 
subsistence  increase,  unless  prevented  by  some  very  powerful  and 
obvious  checks;  3.  These  checks,  and  the  checks  which  repress  the 
superior  power  of  population,  and  keep  its  effects  on  a  level  with 
the  means  of  subsistence,  are  all  resolvable  into  moral  restraint, 
vice,  and  misery."  Malthus  repeats  this  principle  literally  in  Book 
II,  chap.  XIII,  Vol.  II,  p.  21(3,  in  the  last  chapter  of  his  historical 
considerations. 

^  "An  Essay  on  the  Principles  of  Population,"  Book  I\',  chap.  X, 
"Of  the  Directionof  our  Charity."  Also  Bk.  IV,  chap.  I,  "Of  Moral 
Restraint." 


180  CIVIC  EMANCIPATION  [Cn.  V 

§  33.  Kant,  Fichte,  Schopenhauer.  1 :  Kant,  (a)  The 
Historical  Position  of  Kant.  In  the  consideration  of 
Kant's  ^  (1724-1804)  philosophy  of  law  and  ethics  a 
distinction  must  be  made  between  the  material  content 
and  the  form  —  meaning  by  the  latter  the  course  and 
the  procedure  by  means  of  which  the  result  is  construc- 
tively obtained.  In  its  content,  Kant's  philosophy  of 
law  is  influenced  by  Thomasius,  Leibnitz,  and,  despite 
Kant's  antagonism  to  Wolff's  hedonism,  by  Wolff 
himself.  In  its  form,  Kant's  practical  philosophy  is 
affiliated  with  the  position  of  "natural  law,"  and  the 
interpretation  derived  therefrom,  and  bears  traces  of 
the  distinctive  Kantian  method  as  embodied  in  the 
"Critique  of  Pure  Reason."  Kant's  ethics  is  but  a 
secularization  of  the  ethics  of  Christianity,  which, 
indeed,  is  hardly  improved  by  his  formulation.  In 
developing  his  practical  philosophy,  Kant  incorporated 
Thomasius'  ^  philosophy  of  law,  including  his  definition 
of  justice;  he  also  built  upon  the  "vir  bonus"  of  Leib- 
nitz—  characterized  as  "sapiens"  and  "Justus."  He 
was  antagonistic  to  the  hedonism  of  Wolff  and  to  the 
utilitarianism  of  Hobbes;  for  these  doctrines  seemed  to 
him  too  insecure,  and  the  emotion  of  happiness  too 
subjectiv'e  and  intangible,  to  afford  a  durable  basis  for 
an  ethical  system.  In  thus  definitely  holding  aloof 
from  the  hedonistic  principle,   Kant's  ethics  and  legal 

^The  following  works  of  Kant  are  here  pertinent:  "Idee  zu  einer 
allgemeinen  Geschichtein  weltbürgerlicher  Absicht,  "1784.  "Grund- 
legung zur  Metaphysik  der  Sitten,"  1785.  "Kritik  der  Praktischen 
\x'rnunft,"  1788.  "Lieber  den  Gemeinspruch:  Das  mag  in  der 
Theorie  richtig  sein,  taugt  aber  nicht  für  die  Praxis,"  1793;  II. 
"\'om  Verhältnis  der  Theorie  zur  Praxis  im  Staatsrecht,"  "Zum 
ewigen  l'Vieden,"  1795.  "Metaphysische  Anfangsgründe  der 
Recht  sichre,"  1797.  I  cite  from  the  edition  in  10  vols,  Vols.  4,  5, 
Leipzig  1838. 

2  See  above. 


§3:j]       KANT,  FICHTE,  SCHOPENHAUER         181 

philosophy  pursued  a  course  diamctricall>'  opposed  to 
that  of  Wolff;  ethics  regained  its  objective  foundation, 
and  was  released  from  an  inadequate  psychological 
motive  —  the  pursuit  of  happiness.  Kant  returned  to 
the  older  view  that  the  essence  of  ethics  lies  in  sacrifice 
—  a  view  developed  by  Christianity  in  the  spiritual  form 
of  the  altruistic  sentiment -of  neighborly  hn'e;^  and  he 
interprets  disinterestedness  as  a  moral  duty.  In  his 
philosophy  of  government  Kant  rejected  the  theories 
of  popular  w^elfare  and  paternalism,  and  emphasized  the 
function  of  the  State  as  an  institution  of  law  and  justice. 
In  these  considerations  he  showed  the  influence  of 
Rousseau. 

(b)  Kant's  Ethics.  The  "Grundlegung  der  Meta- 
physik der  Sitten"  aims  to  define  morals  in  so  large  a 
philosophic  sense  as  to  include  the  concept  of  law.^  The 
"vir  bonus"  served  Leibnitz  as  his  point  of  departure; 
similarly  Kant  begins  with  "what  alone  may  be  con- 
sidered unreservedly  good,"  namely,  good  will  or  intent. 
This  good  will,  "though  with  reservations  and  limita- 
tions," is  expressed  in  the  concept  that  "occupies  a  fore- 
most place  in  the  judgment  of  conduct,  and  conditions 
all  relations"  —  the  concept  of  duty.  Actions  acquire 
moral  value  only  when  they  arise,  not  from  inclination, 
but  from  a  sense  of  obligation.  An  action  perfonned  for 
an  ulterior  purpose,  or  in  response  to  selfish  impulse, 
cannot  be  called  moral.  Moral  value  may  be  ascribed 
only  to  actions  resulting  "from  the  conception  of  a  self- 
sufficient  law."  Such  direction  of  the  will  towards  the 
good,  determined  through  appreciation  of  the  nature 
of  principle  or  law,  is  possible  only  to  "rational  beings."  ^ 
But  what  is  the  nature  of  the  principle  itself?     "As  I 

^  See  above,  §  20. 

^"Grundlegung  zur  Metaphysik  der  Sitten,"  Vol.  4,  p.  8. 

3  "Grundlegung,"  pp.  10,  11,  14,  16,  19,  20,  28. 


182  CIVIC   EMANCIPATION  [Cii.  V 

have  deprived  the  will  of  all  impulses  which  it  migiit 
have  obtained  through  dependence  upon  a  specific  law, 
there  is  nothing  left  but  the  one  motive  of  loyalty  to 
law  itself.  This,  indeed,  is  the  only  proper  motive  for 
the  will  to  act  upon;  in  other  words,  I  should  never  so 
act  that  I  cannot  will  that  my  rule  of  conduct  may  be- 
come a  universal  law."  ^ 

The  conception  of  a  principle  that  determines  the  will 
is  called  by  Kant  "a  command"  or  a  "formal  command," 
which  implies  that  the  principle  thus  conceived  is,  as  to 
its  content,  an  imperative.  The  imperatives  are  of  two 
kinds;  the  hypothetical  imperative  presents  the  neces- 
sity of  an  act  as  a  means  towards  a  desired  end;  "the 
categorical  imperative  is  that  which  presents  an  act 
as  of  itself  objectively  necessary,-  withotit  reference  to 
any  ulterior  end."  This  categorical  imperative  refers 
only  to  the  form  and  to  the  principle  in  virtue  of  which 
the  act  results;  it  is  the  imperative  of  the  moral.-'  As 
the  categorical  imperative  comprises  "in  addition  to 
the  law,  the  obligation  that  the  rule  of  conduct  shall  be 
in  accord  with  the  law,  while  the  law  involves  no  Hmit- 
ing  condition,  there  remains  nothing  beyond  the  law  in 
general  to  which  the  rule  of  conduct  shall  conform." 
The  term  "maxim,"  or  rule  of  conduct,  represents  the 
subjective  principle  of  action  and  is  to  be  distinguished 
from  the  ol)jective  i)rinci])le,  which  the  practical  law 
specifies.  Hence  the  conception  of  the  categorical  im- 
perative involves  its  content;  and  this  reads:  "Act 
so  that  your  rule  of  conduct  permits  you  to  desire  that 
it  may  become  a  uni\ersal  law."  * 

1  "Grundlegung,"  p.  20.  "Act  according  to  a  principle  which  may 
also  serve  as  a  general  law."  ("Metaphysische,"  etc.  "Collected 
Works,"  5,  p.  25.) 

'^  "(irnndlcgung,"  p.  35. 

■'  "(MMiidlfgiing,"  ]).  38. 

■*  "( ■.nnnllcj^iiiig,"  p.  43. 


§33]        KANT,  FICHTE,  SCHOPENHAUER         183 

If  such  categorical  imperative  is  to  govern  the  human 
will,  there  must  exist  a  supreme  principle  which  is  a 
"purpose  unto  itself,"  and  thus  constitutes  an  objective 
principle  for  the  will,  and  accordingly  may  become  a 
universal  practical  law.  The  basis  of  this  principle  lies 
in  itself,  and  constitutes  the  self-sufificient  character  of 
the  rational  nature.  "The  rational  nature  is  a  purpose 
unto  itself."  Pursuant  to  this  rational  basis  man  con- 
siders his  own  existence;  hence  the  action  upon  principle 
becomes  the  subjective  principle  of  human  action.  By 
virtue  of  the  same  basis  every  other  rational  creature 
forms  the  conception  of  its  own  existence.  The  prin- 
ciple thus  becomes  at  once  an  objective  one,  from  which 
"as  the  supreme  practical  principle  we  should  be  able  to 
derive  all  the  laws  of  the  will."  The  practical  impera- 
tive therefore  reads:  "Act  so  that  you  treat  humanity, 
whether  expressed  in  your  own  person,  or  in  the  person 
of  another,  ever  as  an  end,  never  merely  as  a  ineans."  ^ 
In  other  w^ords,  respect  yourself  and  your  neighbor  as  a 
rational  being,  as  one  amenable  to  culture.  Here  may 
be  detected  the  germ. of  the  "Kulturstaat,"  as  outlined 
by  Fichte,  and  elaborated  by  Hegel. 

In  Kant's  view  the  categorical  imperative  becomes 
valid  only  on  the  assumption  of  human  freedom.  The 
autonomy  of  the  will  is  the  supreme  principle  of  morality; 
it  is  that  "quality  which  makes  the  will  a  law  unto 
itself,"  independent  of  the  nature  of  the  objects  of  its 
desire.  Hence  the  principle  of  autonomy  is  "never  to 
choose  otherwise  than  that  the  rule  of  conduct  of  your 
choice  may  likewise  be  willed  as  a  general  law."  ^  To 
be  autonomous  the  human  will  must  be  free.  "The 
conception  of  freedom  is  the  key  to  the  understanding 

^"Grundlegung,"  pp.  52  seq. 

'  "Metaphysische,"  etc.,  pp.  57,  66. 


184  CIVIC  EMANCIPATION  [Ch.  V 

of  the  autonomy  of  the  will."  ^  "The  difference  between 
the  laws  of  nature,  to  which  the  will  is  subject,  and  a 
nature  subject  to  a  will,  consists  in  the  fact  that  in  the 
latter  case  objects  must  be  the  causes  of  the  concepts 
determining  the  will,  while  in  the  former  the  will  is  the 
cause  of  the  objects,  the  causal  relation  thereof  being 
resident  in  the  capacity  for  pure  reason,  which,  on  that 
account,  may  also  be  called  a  practical  reason."  ^  In 
other  words,  by  virtue  of  the  rational  will,  man  is  master 
of  himself,  a  free  man,  free. 

Kant  thus  determines  the  relation  between  the  law 
of  morality  and  free  will.  The  existence  of  the  moral 
law  —  which  has  but  one  meaning  if  men  are  capable 
of  pursuing  it  —  leads  to  the  inference  of  the  free  will; 
for  freedom  is  the  material  assumption  of  the  moral 
law.  "Freedom  is  the  basis  of  man-made  moral  law, 
and  the  latter  becomes  the  means  of  knowing  freedom."' 
The  freedom  of  the  will  cannot  be  inferred  or  established 
theoretically,  but  is  a  practical  inference  from  the  very 
existence  of  the  moral  law. 

(c)  Kant's  Philosophy  of  Law,  Law  is  "the  aggre- 
gate of  the  conditions  under  which  the  arbitrary  will 
of  one  individual  may  be  combined  with  that  of  another 
under  a  general  inclusive  law  of  freedom."*  Law  in 
contrast  to  morality  thus  refers  to  external  practical 
affairs.  Accordingly  the  general  principle  of  justice 
reads:  "So  conduct  your  affairs  that  the  free  use  of  your 
will  is  compatible  under  a  general  law  with  the  freedom 
of   everyone    else."^ 

'  "Mctaphys.,"    etc.,    pp.    7;{  03. 

'^"Krilik    der   ])niklis(li(n    Vcrmmft,"  '  Collected  Works,"  IV,  p. 
149. 

^Fakkriiherii,    "(icscliiclilc   der   iiciicrcii    Philosophie,"  fifth   edit., 

p.  :}4'2. 

«"Metaphys.,"  etc.,  "Complete  Works,"  V,  p.  30, 
''"Melaphys.,"  etc.,  p.  :'.!. 


§33]       KANT,  FICHTE,  SCHOPENHAUER         185 

According  to  Kant  a  State  is  "an  association  of  men 
under  a  system  of  laws."^  Were  it  not  for  their  dis- 
tinctive phraseology,  Kant's  expressions ^  on  the  origin 
of  the  State  would  read  like  the  words  of  Rousseau: 
"The  action  whereby  the  people  constitute  themselves 
into  a  State,  but  in  reality  form  only  the  conception 
thereof  —  the  conception  determining  how  the  conform- 
ity to  law  shall  be  thought  of  —  is  the  original  contract. 
By  such  contract,  each  and  all  of  the  people  give  up 
their  external  freedom  in  order  to  resume  it  again  as 
members  of  a  common  body  —  of  the  people  considered 
as  a  State.  It  is  not  proper  to  say  that  the  individual 
for  a  purpose  has  sacrificed  to  the  State  a  part  of  his 
inherent  liberty,  but  that  he  has  abandoned  a  crude 
lawless  freedom,  in  order  again  to  resume  it  unimpaired 
in  a  law-abiding  dependence,  in  a  legal  condition  —  and 
this  because  such  dej^endence  originates  from  his  own 
law-determining  will."  This  in  substance  is  Rousseau's 
"Social  Contract."^  /But  the  difference  between  the 
position  of  "natural  right"  in  Kant,  and  in  pre-Kantians, 
consists  in  that  in  the  legal  philosophy  of  the  former, 
the  development  from  the  pre-lcgal  condition  —  a  state, 
6i  lawlessness,  "status  justilia  vacims," — to  the  civic 
^ndition  which  theState  brings  about,  is  an  issue  of 
reason,'  a  cnnception  of  the  understanding.*  A  further 
merit  of  Kant  is  his  rejection  of  Hobbes'  view  that 
in  entering  the  State  men  give  up  all  their  rights.^  This 
Spinoza  had  already  set  forth  in  his  view  that  the  free- 

i"Metaphys.,"   etc.,   p.    14.5. 

*"Metaphys.,"   etc.,   \).    14S. 

'  See  above,  §  29. 

*"Metaphys.,"  etc.,  pp.  144  seq.;  "Vom  Verhältnis  der  Theorie," 
etc.,  "Collected  Works,"  V,  p.  391. 

*The  essay  "Vom  Verhältnis,"  etc.,  bears  in  its  title  the  words, 
"against  Hobbes."     "Collected  Works,"  V,  p.  382. 


186  CIVIC   EMANCIPATION  [Ch.  V 

dorn  of  man  was  necessary  to  his  dignity  and  is  inalien- 
able. Kant  solves  -  the  problem  of  legal  coercion  by 
holding  that  by  the  establishment  of  the  State,  human 
freedom  is  made  secure.  This  again  is  the  same  prob- 
lem which  Rousseau  had  set  himself  in  the  "Contrat 
Social,"  and  is  essentially  the  same  solution.  Kant  fur- 
ther agrees  with  Rousseau  in  regarding  this  solution  as 
not    historically   but   theoretically   applicable.' 

According  to  Kant  the  warrant  of  legal  freedom  of 
each  member  of  the  State  is  implicitly  contained  in  the 
principle  of  law,  and  reaches  a  general  expression  in  the 
law.  In  detail  three  a  priori  principles-  form  the  basis 
of  the  legal  condition:  first,  the  freedom  of  every  mem- 
ber of  the  community  as  a  man;  second,  the  equality 
of  each  with  every  other  as  a  subject  (as  a  consequence 
of  this  idea  of  equality,  every  citizen  is  eligible  to  any 
office,  "to  every  rank  of  position  in  the  commonwealth 
to  which  his  talents,  his  industry,  and  his  fortune  may 
bring  him,"  thus  setting  aside  all  hereditary  privilege); 
third,  the  independence  of  each  member  in  the  State 
as  a  citizen.  From  this  follows  the  right  of  serving  as 
a  legislator.  Anyone  having  a  right  of  vote  in  legisla- 
tion becomes  a  citizen,  "citoyen,"  "Staatsbürger.^  The 
conception  of  the  legal  State,  "Rechtsstaat,"  finds  clear 
expression  in  tliese  principles  and  is  furthermore  con- 
sidered under  legislation.  "The  only  ])ermanent  con- 
stitution is  tlial  in  which  the  law  issu])reme  and  depends 

'  In  aililiiiiiii  lo  uliat  lias  l)f(_'n  cilcd  sec  also  "Melaijhys.,"  etc., 
]).  ITCi:  "ll  is  liililr  to  trace  tlic  historical  oriiiiii  of  this  govern- 
mental niechanisni;  that  is,  one  cannot  reach  tiie  jjcriod  at  which 
civil  society  begins." 

^  "These  principles  are  not  laws  derived  from  tiie  Slate  as  estab- 
lished, but  laws  determining  how  the  establishment  of  the  State, 
in  accordance  with  the  rational  principles  of  objective  human  law, 
is  alone  possible."     "Vom  Verhältnis,"  etc.,  j).  383. 

'"Vom   Veriiällnis,"   etc.,   j^p.   3S3-3Ü1. 


§33]       KANT,  P^ICHTE,  SCHOPENHAUER         187 

on  no  Indiviflual  person.  The  ultimate  purpose  of  all 
public  law  is  a  condition  of  affairs  in  which  each  individ- 
ual absolutely  receives  that  to  whichjie-nrentitled."^ 

IrTtlTeToirEroversy  with  IT(^)bes,  Kant  again  distinctly 
opposes  the  principle  of  hap]Mness,  "which  in  fact  does 
not  amount  to  a  definite  princi]:)le,"  in  these  words: 
"The  sovereign  desires  to  make  the  people  happy  accord- 
ing to  his  own  views,  and  becomes  a  despot.  The  people 
are  unwilling  to  yield  the  universal  claim  to  happiness 
and    become    rebellious."^ 

In  his  philosophy  of  punishment,  Kant  approves  the 
theory  of  retribution.  "Judicial  punishment  can  never 
be  merely  a  measure  to  further  the  good  of  another,  either 
of  the  offender  himself  or  of  society,  but  must  always 
be  applied  because  the  law  has  been  violated."  Kant 
distinctly  rejects  the  view  of  punishment  as  a  means  to 
an  end.  "Punitive  law  represents  a  categorical  impera- 
tive, and  woe  to  him  who  pretends  to  find  in  the  mazes 
of  Hedonism  an  excuse  for  exemption  from  punishment 
on  the  ground  of  a  larger  advantage.  For  if  justice  fails 
there  is  no  value  in  human  life."  "Even  if  civil  society, 
with  the  consent  of  all  its  members,  were  to  be  dissolved, 
the  last  murderer  confined  in  prison  would  first  have  to 
be  executed."^ 

In  the  work,  "Zum  ewigen  Frieden,"  Kant  outlines 
and  establishes  the  preliminary  and  definite  provisions 
for  a  permanent  peace  among  nations."* 

(d)  The  Origin  and  the  Purpose  of  the  State.  The 
philosophy  of  Kant  presents  a  transition  from  the  period 
of  "natural  law"  to  that  of  modern  legal  philosophy. 
According  to  the  former  position  the  State  is  established 

^  "Metaphys.,"   etc.,   p.    178. 
^  "Vom  Verhältnis,"  etc.,  p.  397. 
^  "Metaphys.,"  etc.  pp.  166-173. 
*  "Collected  Works,"  IV,  pp.  411-466. 


188  CIVIC   EMANCIPATION  [Ch.  V 

by  conscious  intent.  The  constitution  of  the  State  is 
to  be  conceived  in  analogy  with  the  foundation  of  an 
association.  Individuals  come  together  and  for  definite 
purposes  found  the  State.  This'  position  Kant  never 
wholly  outgrew;  yet  his  conception  is  far  superior  to 
that  of  the  position  of  "natural  law,"  in  that  heundertakes 
to  prove  that  the  State  was  founded  not  by  human  will 
but  by  the  reason  as  immanent  in  human  will,  the  estab- 
lishment being  a  response  to  the  demands  of  reason.  The 
decisive  motive  thus  becomes,  not  the  material  welfare 
which  the  State  is  to  further,  but  the  ideals  and  commands 
of  practical  reason.  By  assuming  this  position  Kant 
solved,  from  the  point  of  view  of  "natural  law,"  three 
difficult  and  fundamental  legal  problems  of  philosophy. 
First:  the  foundation  of  the  State  appears  as  an  objec- 
tive necessity.  The  problem  which  Spinoza  had  formu- 
lated but  failed  to  solve,  namely,  the  objective  conformity 
of  the  State  and  law  to  nature,  is  satisfactorily  answered. 
Second :  the  establishment  of  legal  coercion  by  the  State, 
which  for  Rousseau  was  the  decisive  problem,  Kant  dis- 
posed of  much  as  Rousseau  had  done.  He  concluded 
that  freedom  is  not  destroyed  by  the  State,  but  is  re-es- 
tablished therein,  and  elevated  to  true  freedom.  Third: 
through  these  steps  the  political  life  of  the  State  is 
developed.  The  constitution  and  legislation  of  the  State 
proceed  not  in  resi)onse  to  the  ends  of  utility  or  happi- 
ness, but  to  the  idea  of  freedom.  The  State,  inspired 
with  the  si)irit  of  freedom,  is  one  in  which  there  is  no 
form  of  desi)Otism,  but  one  in  which  legal  rights  are 
protected,  "Rechtsstaat."  Freedom  becomes  equiva- 
lent to  the  comprehensive  dominion  of  law;  so  long  as 
law  prevails  the  dignity  of  man  is  secure. 

(e)  The  Present  Significance  of  Kant's  Philosophy. 
The  c|ii('sti()n  arises  as  to  the  present  significance  of 
the    Kantian    philosophy.   When   a    century  hence   the 


§33]       KANT,  FICHTE,  SCHOPENHAUER         189 

historian  of  civilization  looks  back  to  our  time,  he 
might  readily  conclude,  in  view  of  the  many  memorial 
volumes  contributed  at  the  beginning  of  the  twentieth 
century  to  commemorate  the  centennial  of  Kant's  phil- 
osophy, that  we  stood  completely  under  the  influence  of 
Kant.  Such  an  impression  must  be  resolutely  removed. 
Kant's  greatness  is  limited  to  his  day  and  generation. 
Viewed  from  our  present  position,  Kant's  metaphysics 
must  be  pronounced  fundamentally  false;  his  philosophy 
of  law  is  that  belonging  to  the  outgrown  position  of 
the  "Rechtsstaat";  his  ethics  is  sound  only  in  its  formal 
trend,  that  is,  in  itsrejection  of  Hedonism.  The  Kantian 
philosophy  presents  a  dual  aspect.  It  represents  at 
once  the  beginning  of  a  new  era,  but  inore  especially 
the  concluding  moment,  the  last  great  uprising  of  ration- 
alism in  general  philosophy,  and  of  the  doctrine  of 
"natural  law"  in  legal  philosophy.  The  decline  of 
"natural  law,"  both  in  its  mode  of  presentation  and  in 
its  formal  content,  begins  with  Kant. 

Up  to  his  time  philosophy  employed  the  technical 
language  of  the  scholar.  The  literature  was  in  Latin  or 
French ;  though  the  English  wrote  in  their  own  language, 
German  was  not  employed  by  the  Germans.  Leibnitz 
published  only  some  scattered  essays  in  German,  and 
Wolff  used  the  language  for  such  writings  as  were  ad- 
dressed to  a  large  circle  of  readers  and  were  not  con- 
ceived in  a  strictly  scientific  temper.  Kant  made  the 
German  language  available  for  philosophy,  but  his  German 
was  not  the  language  of  the  people,  such  as  characterizes 
Luther's  translation  of  the  Bible.  It  was  the  language 
of  the  specialist,  conceived  in  Latin,  in  a  Latin  style,  and, 
through  its  abundance  of  technical  terms,  removed  from 
the  common  comprehension.  The  important  problem 
of  post-Kantian  philosophy  should  naturally  have  been 
to  simplify  the  philosophic  diction,  to  clarify  it,  and  to 


190  CIVIC   EMANCIPATION  [Ch.  V 

Teutonize  it.  This  mission  was  accepted  only  by 
Schopenhauer,  and  by  those  following  in  his  footsteps, 
such  as  von  Hartmann,  Diihring,  and  Nietzsche;  for 
what,  in  contrast  to  the  literary  philosophy —  "Salons- 
philosophie" —  of  Schopenhauer,  may  be  called  the  scien- 
tific tendency  of  the  post-Kantian  philosophy  of  Fichte, 
Hegel,  and  the  Hegelians,  is  yet  more  difficult,  abstruse, 
and  artificial  in  expression.  Since  the  days  of  Kant 
the  unfortunate  tradition  has  become  legitimized  in 
philosophic  writings  to  use  such  involved  language  that 
the  uninformed  reader  acquires  a  profound  respect  for 
the  depth  of  the  philosopher;  and  instead  of  gaining  an 
impression  of  the  unprofitaljlencss  of  the  philosophic 
author,  he  infers  his  own  incapacity  to  follow  so  lofty 
a  train  of  thought.  From  the  days  of  Kant  the  fallacy 
has  prevailed  that  it  is  not  philosophical  to  write  clearly 
and  simply.  Consider  by  way  of  contrast  the  pre- 
Kantian  philosophy;  when  couched  in  Latin,  the 
language  is  simple  and  clear;  the  French  works  are 
even  elegant  and  spirited,  and  those  in  English  are  not- 
ably lucid.  Until  the  days  of  Kant,  philosophy  was  the 
common  property  of  the  educated  classes  and  a  source 
of  inspiration  for  all  science;  since  his  day  philosophy 
has  become  increasingly  the  specialty  of  a  guild,  and  has 
lost  in  general  significance. 

These  defects  in  form  stand  in  close  relation  to  the 
mode  of  logical  procedure  of  ])liil<)S()i)hy  from  Kant  to 
Hegel.  Kant  was  presumably  in  earnest  in  attempting 
to  exclude  experience  and  the  results  of  experience  from 
philosopli)'.  Pine  or  experien(X'less  reason  alone  was 
considered  ade(|uate  to  yield  ])hilosophic  knowledge. 
Inasmuch  as  in  reality  this  ])ostuIate  could  not  be  carried 
through  without  condenniing  ])hil()S()phy  to  a  barren 
sterility,  and  confining  it  to  mere  elementary  deductions, 
the  results  of  experience  are  furtively  introduced.     They 


§3J]       KANT,  FICHTE,  SCHOPENHAUER  191 

must  disown  their  empirical  character  by  appearing  as 
rational  products,  by  a  transformation  into  the  jiroducts 
of  reason.  This  wearisome  transformation  and  tlic 
artificial  procedure  which  it  necessitates  find  a  welcome 
instrument  in  an  artificial  language;  and  the  legacy  of 
this  linguistic  artifice  in  large  measure  persists  in  modern 
philosophical  writings,  although  the  present-day  phil- 
osopher has  little  need  of  such  contrivances,  except 
perhaps  to  conceal  how  meager  or  how  unphilosophically 
simple  is  his  stock  of  ideas. 

We  here  reach  an  additional  exidcnce  of  decline  in 
much  of  the  post-Kantian  philosophy,  and  particularly 
in  the  ethics  and  the  philosophy  of  law;  though  this 
applies  with  many  exceptions,  notably  that  of  Hegel's 
construction  of  a  universal  science,  upon  an  historical 
basis.  Pre-Kantian  philosophy  in  large  measure  derived 
its  data  from  the  rich  mine  of  a  many-sided  life ;  it  drew 
its  resources  from  the  inexhaustible  font  of  experience. 
Philosophy  was  worldly  wisdom.  The  accredited  phil- 
osophers of  the  day  were  for  the  most  part  men  notable 
in  contemporary  movements,  responsive  to  the  events 
of  their  time,  and  to  the  wealth  of  experience  and 
manifold  personal  relations  of  a  full  life.  Military 
leaders  and  statesmen,  politicians  and  practical  jurists, 
drew  from  the  wealth  of  complex  experience  the  positive 
data  from  which  a  philosophic  interpretation  might  be 
derived.  But  after  Kant,  philosophy  became,  in  the 
main,  a  specialty;  and  men  wrote  upon  ethics  without 
knowing  human  kind,  and  on  the  philosophy  of  law 
without  a  thorough  knowledge  of  law;  hence  the  de- 
tachment of  philosophy  from  worldly  widom  and  it3 
scholastic  development.  In  due  course  a  reaction  set  in, 
A  philosophic  naturalism  came  forward,  finding  its  sup- 
port in  the  natural  sciences,  advocating  an  empiricism 
which   recognized   natural   laws   and   natural   products' 


192  CIVIC  EMANCIPATION  [Ch.  V 

alone,  and  to  which  man  was  nothing  more  than  a  most 
dehcately  organized  mechanism.  A  materiahstic  em- 
piricism replaced  philosophy,  and  ushered  in  a  period, 
the  conclusion  of  which  we  are  now  witnessing,  but 
which  is  as  yet  not  wholly  superseded.  We  still  suffer 
from  the  reaction  which  followed  upon  the  dissolution 
of  the  doctrine  of  "natural  law"  and  upon  the  post- 
Kantian  decline  of  philosophy. 

It  would  thus  appear  that  Kant  has  slight  significance 
for  the  present  legal  philosophy  and  particularly  for 
economics,  which  is  in  large  measure  being  replaced  by 
a  wholly  practical  sociology,  with  a  program  of  social 
utilitarianism,  seeking  the  welfare  of  society.  This 
sociology  follows  Ihering  in  viewing  the  end  sought  as 
the  purpose  of  the  law.  This  "social  welfare"  philoso- 
phy is  clearly  unrelated  to  the  position  of  Kant.  It  is 
in  a  measure  a  reinstatement  of  the  position  of  Wolff,  a 
reconstruction  of  his  paternally  regulated  State,  in  which 
the  social  spirit  of  the  law  takes  the  place  of  the  benevo- 
lence of  the  absolute  monarch  and  his  decrees.  In  so 
far  as  an  independent  philosophy  of  law  is  today  recog- 
nized, it  stands  in  diametrical  opposition  to  the  philoso- 
phy of  Kant;  for  the  latter  is  thoroughly  rationalistic, 
a  priori,  based  upon  pure  reason,  while  the  former  is 
inductive  and  empirical,  and  proceeds  upon  the  data  of 
history  and  comparative  law. 

2:  Fichte  (1762-1814).  (a)  The  Position  of  Fichte. 
In  the  development  of  Fichtc's^  jiractical  philosophy  two 

1  "Johann  Gottlieb  Fichtc's  Werke,"  i)ul)!ishe(l  by  J.  11.  Fichte,. 
vols.  3,  4,  6,  7,  Berlin  1845-1846.  "Posthumous  Works,"  published 
by  J.  H.  Fichte,  2  vols.,  Bonn  1834.  "Zurückforderun ^  der  Denk- 
freiheitvon  den  I'^iirsten  ICuropas,  die  sie  bisher  untcrdrüt  kten,"  Rede 
aus  dem  Jahre  17<);}.  ("Collected  Works,"  VI,  p]).  3-35.)  "Beitrag 
zur  Berichtigung  der  Urteile  des  Pui)likums  ül)cr  die  französische 
Revolution,"  J7<):5.  ("Collected  Works,"  VI,  pp.  39-288.)  "Grund- 
lage des  Naturrechts  nach  Prinzipien  der  Wissenschaftslehre,"  1798. 


§33]       KANT,  FICHTE,  SCHOPENHAUER         193 

periods  are  clearly  distinguishable.  In  the  first  period, 
Fichte  as  a  Kantian  reasserts  the  "Rechtsstaat,"  the 
constitutional  State,  but  shows  the  influence  of  Rous- 
seau in  providing  a  nullification  clause  in  the  civic 
contract.  In  the  second  period  Fichte  goes  beyond  the 
"Rechtsstaat"  and  regards  the  State  and  the  members 
thereof  not  as  fixed  and  unalterable,  but  as  subject  to 
evolution.  Fichte  advances  from  the  conception  of  the 
State  as  the  embodiment  of  law,  "Rechtsstaat,"  to  the 
State  accepting  the  mission  of  culture,  "Kulturstaat." 
In  this  he  anticipates  Hegel,  and  in  his  consideration  of 
the  human  race  in  its  entirety,  and  in  its  development,  he 
foreshadows  Schelling.  Equally  notable  is  Fichte's 
career  as  a  statesman,  the  awakener  of  the  German  na- 
tional consciousness.  The  transition  from  the  first  to  the 
second  period  is  marked  by  the  formulation  of  the  State 
of  economic  protection.  Fichte  undertakes  an  economic 
construction  in  which  the  factor  of  personal  dignity, 
emphasized  by  Kant,  shall  be  practically  embodied  in 

("Collected  Works,"  Vol.  Ill,  Part  2  A,  "Zur  Rechts- und  Sittenlehre," 
Vol.  I,  p.  385.)  "Das  System  der  Sittenlehre  nach  den  Prinzipien 
der  Wissenschaftslehre,"  1798,  "Collected  Works,"  IV  (Part  2  A, 
Vol.  2,  pp.  1-365).  "Der  geschlossene  Handelsstaat.  Ein  philosoph- 
ischer Entwurf  als  Anhang  zur  Rechtslehre  und  Probe  einer  künftig  zu 
liefernden  Politik,"  1800.  ("Collected  Works,"  Vol.  III  (II,  part  A, 
Vol.  I,  pp.  388-513.)  "Die  Grundzüge  des  gengenwärtigen  Zeital- 
ters," 1804.  ("Collected  Works,"  Vol.  VII,  pp.  3-256.)  "Reden  a  a 
die  deutsche  Nation,"  1808.  ("Collected  Works,"  VII,  pp.  259- 
499.)  "Anhang  zu  den  Reden  an  die  deutsche  Nation,"  written  in 
1806,  but  never  published  independently.  ("Collected  Works," 
VII,  pp.  503-516.)  "Politische  Fragmente  aus  den  Jahren  1807, 
1813.  ("Collected  Works,"  VII,  597-604.)  "Das System  der  Rechts. 
lehre  in  Vorlesungen,"  1812.  ("Posthumous  Works,"  II,  pp.  493- 
652.)  "Die  Staatslehre  oder  über  das  Verhältnis  des  Urstaats  zum 
Vernunftreich  in  Vorlesungen,"  gehalten  im  Sommer,  1813,  auf  der 
Universität  zu  Berlin;  published  Berlin  1820.  ("Collected  Works," 
Vol.  IV,  pp.  367-600.) 


194  CIVIC   EMANCIPATION  [Ch.  V 

the  economic  relations.  The  State  must  be  so  organized 
that  each  individual  may  be  recognized  as  an  economic 
factor.  In  the  development  of  this  conception  Fichte 
falls  into  a  strange  Utopian  socialism. 

(b)  Fichte's  Philosophy  of  Law.  Fichte's  "Grund- 
lage des  Naturrechts  nach  Prinzipien  der  Wissenschafts- 
lehre" was  written  before  the  appearance  of  Kant's 
"Metaphysische  Anfangsgründe  der  Rechtslehre,"  and 
in  complete  independence  of  the  latter's  views.  Influ- 
enced by  Rousseau,  Fichte  made  human  freedom  cen- 
tral. "Every  man  is  by  nature  free,  and  no  one  but  he 
himself  has  the  right  to  impose  a  law  upon  him."  "Every 
nan  again  becomes  free  as  soon  as  he  so  desires,  and 
has  the  right  to  withdraw  from  obligations  which  he 
has  imposed  upon  himself."  Such  are  the  words  in  the 
"Beitrag  zur  Berichtigung  der  Urteile  des  Publikums 
über  die  französische  Revolution."^  Freedom  and 
human  dignity  form  the  text  of  this  address,  in  which 
is  demanded  "a  restitution  of  the  rights  of  free  thought 
on  the  part  of  the  rulers  of  Europe,  by  whom  they  had 
been  refused."  In  speaking  of  the  human  conscience, 
Fichte  calls  it  "the  divine  spark  in  human  nature  that 
elevates  man  above  the  brute  creation,  and  makes  him 
a  citizen  of  the  world,  of  which  the  first  member  is 
( j(xl.  His  conscience  commands  him  directly  and  uncon- 
ditionally to  will  one  thing  and  not  1o  will  another  — 
and  tliis  freely  and  of  his  own  volition,  without  external 
coni])iilsi()n."  "To  be  able  to  tliink  freely  is  the  dis- 
tinct i\'e  difference  between  the  himian  and  the  animal 
mind."  "Ci\il  society"  is  based  upon  the  free  act  of 
will  of  those  ])arlici])aling  in  the  common  organization. 

'  "Colled cd  Works,"  VI,  pp.  2(12,  2(t;>.  Lasson  in  "J.  (r.  Fichte  im 
V'criiältiiis  zu  Kirc  lie  iiiul  Staat,"  [).  IGT,  comments  as  follows:  "The 
dominant  tcniprr  ol  iliis  work  may  be  most  simply  indicated  by 
«•ailing  it  jacobin,  wliilf  adniillini;  tlic  presence  of  oilier  factors." 


§33]       KANT,  FICHTE,  SCHOPENHAUER         195 

"Civil  legislation  becomes  valid  for  the  individual  only 
in  so  far  as  he  freely  accepts  it"  —  by  what  token  is 
immaterial  —  and  "thus  freely  imposes  «the  law  upon 
himself."  1 

In  the  "Grundlage  des  Naturrechts,"  the  influence  of 
Rousseau  is  in  part  obscured  by  the  Kantian  train  of 
thought.  In  tracing  the  origin  of  the  State  and  the 
law,  and  the  State  as  embodying  the  law,  Fichte  proceeds 
upon  the  model  supplied  by  Kant.  The  purpose  of  the 
conception  of  law  is  to  provide  an  association  between 
free  individuals.  The  law  must  be  so  formulated  that 
in  principle  each  member  of  society  may  be  conceived  as 
restricting  his  external  freedom  by  the  exercise  of  an 
inner  freedom  so  that  all  may  likewise  be  free.  Hence 
the  obligation  to  restrict  one's  individual  freedom  by 
reference  to  the  concept  of  the  freedom^  of  all  others  with 
whom  relations  are  maintained.  Yet  this  postulate 
merely  sets  forth  the  condition  under  which  alone  the 
State  and  law  are  possible.  The  existence  of  a  law- 
abiding  community  depends  upon  the  mutual  restraint 
of  the  freedom  of  the  component  individuals.  But  this 
condition  of  itself  is  not  adequate  to  the  establishment 
of  the  State.  Its  necessity^  is  not  yet  proven.  Such 
necessity  is  a  postulate  of  the  practical  reason.  "If 
reason  is  to  be  realized  in  the  world  of  experience, 
then  it  must  first  be  made  possible  for  several  rational 

1  "Collected  Works,"  VI,  pp.  11-13. 

2  "Collected  Works,"  III,  pp.  9-11,  17-56,  89.  "The  deduced 
relation  between  rational  beings  through  which  each  limits  his 
freedom  by  the  consideration  of  making  possible  the  freedom  of 
others,  provided  that  others  likewise  will  restrict  their  freedom,  may 
be  called  the  legal  relation;  and  the  formula  thus  enunciated  is 
the  principle  of  law."  p.  52. 

^  "Up  to  this  point  no  absolute  reason  has  been  advanced  why 
anyone  should  accept  the  legal  formula  as  the  law  of  his  own  will 
and  action." 


196  CIVIC  EMANCIPATION  [Ch.  V 

beings  to  live  together."^  Consistently  with  Fichte's 
theoretical  philosophy,^  law  becomes  a  condition  of 
individual  self-consciousness.  The  individual  cannot 
become  conscious  of  himself  without  at  the  same  time 
positing  the  existence  of  other  rational  beings.  For 
Fichte,  as  for  Kant,  law,  and  through  it  the  State,  is 
the  direct  product  of  reason.  In  contrast  to  the  mate- 
rialistic conception,  the  civil  contract,  by  means  of 
which  the  State  is  instituted,  has  no  decisive  significance. 
Strictly  speaking,  it  is  of  formal,  not  substantive,  conse- 
quence; it  is  not  constitutive,  but  declaratory.  The 
civil  contract  need  not  necessarily  be  agreed  to;  any 
manner  of  recognition  of  the  State,  even  the  consent 
of  silence,  is  sufficient. 

The  maintenance  of  law  and  the  State  are  dependent 
upon  an  almighty  superhuman  will  loyal  to  the  principle 
of  law.  There  must  be  assumed  "a  will  which  becomes 
an  actual  power  infallibly  when  it  resolves  to  realize 
law."  2  There  must  be  a  guaranty  that  within  the 
State  no  injustice  shall  fall  upon  any  member  thereof. 
Such  guaranty  must  be  absolute,  and  cannot  be  resident 
in  any  human  authority.  The  absolute  efficiency  of 
the  guaranty  can  be  secured  only  by  having  the  law, 
which  is  the  embodiment  of  right,  automatically  make  the 
community  sensitive  to  any  arl)itrary  action,  to  any 
injustice  to  an  individual.  L'or  this  ])urpose  Fichte, 
following  Rousseau,  would  so  organize  the  State  that  the 
civil  contract  may  be  nullified.  The  relation  nuist  be 
so  constituted  that  every  injustice,  however  minute, 
against  an  indixidual  shall  also,  and  by  the  same  token, 
become   an    injustice  against    all;    tliat   every   forni  of 

>  "Collect c<l  Works,"  III,  p.  92. 

^ Berolzheimer,    "System,"   etc.,    Vol.     I,    pp.   74-S"),   i)a/Licularly 
pp.    87-80. 

»"Collected  Woikb,"  111,  pp.  Wl  lUü. 


§33]       KANT,  FICHTE,  SCHOPENHAUER         197 

violation  of  the  civil  contract  shall,  by  that  very  fact, 
nullify  it,  and  by  the  very  mechanism  of  the  law  shall 
justice  be  automatically  secured.^ 

In  theory  this  automatism  of  the  law  is  beautifully 
conceived.  To  Fichte  the  State  becomes  so  complete 
and  balanced  a  construction  that  any  disturbance,  how- 
ever slight,  of  its  equilibrium  would  bring  disaster;  and 
assuredly  all  would  be  zealously  mindful  of  the  law  lest 
the  State  be  endangered.  Viewed  practically  in  consid- 
eration of  governments  and  laws  as  they  are,  the  notion 
becomes  an  absurdity  in  which  Fichte's  extreme  ideal- 
ism and  his  insistent  pursuit  of  an  idea,  once  assumed  to 
be  correct,  have  here,  as  elsewhere,  imposed  upon  his 
judgment. 

The  superiority  of  Fichte's  view  to  the  doctrine  of 
natural  law  consists  in  his  clear  recognition  of  the  non- 
existence of  any  law  antecedent  to  or  outside  of  the  State 
—  that  accordingly  the  assumption  of  "natural  law," 
of  a  primitive  or  original  law,  serves  only  as  a  scientific 
hypothesis.  "There  are  no  primitive  or  inalienable  human 
rights.  Man  acquires  rights  only  as  a  member  of  a 
community.  Primitive  right  ('Urrecht')  is  thus  a  mere 
fiction  required  by  science."  ^  Thus  conceived,  the  prim- 
itive right  is,  in  accord  with  Kant,  the  respect  of  per- 
sonality, in  deference  to  which  man  never  becomes 
morally  a  means,  but  must  be  regarded  and  dealt  with 
as  an  end.  Fichte  thus  formulates  primitive  right:  "It 
is  the  absolute  right  of  the  individual  to  be  but  a  cause 
or  agent, ^  'Urasache'  [that  is,  not  an  effect],  in  the 
world  of  experience."  As,  strictly  speaking,  outside  of 
the  State  there  is  no  law,  so  equally  there  is  no  universal 
citizenship.     It  is  true  that  Fichte  assumes  it,  but  he 

1  "Collected  Works,"  III,  pp.  106-111,  120-149,  150-187. 
2 "Collected  Works,"  III,  p.  112. 
3 "Collected  Works,"  III,  p.  113. 


198  CIVIC   EMANCIPATION  [Ch.  V 

makes  of  it  merely  the  shadow  of  a  right,  limited  to  the 
privilege  of  moving  about  and  asserting  one's  personal- 
ity. "The  right  of  the  world-citizen  consists  in  the  right 
to  walk  about  freely  on  earth,  and  to  establish  legal 
associations."  ^ 

Fichte  distinguishes  between  what  is  legal  and  what 
is  moral.  The  requirements  of  the  law  are  limited  to 
what  is  legal;  the  mechanism  of  the  law,  through  the 
right  of  nullification  in  the  civil  contract,  makes  it  incum- 
bent upon  the  will  to  desire  only  what  is  loyal  to  the 
principle  of  law,  and  thus  automatically  supplies  the 
place  of  a  well-disposed  will.^ 

In  his  "System  of  Ethics  according  to  the  Principles 
of  Science,"  Fichte  makes  it  a  moral  and  conscientious 
duty  of  each  one  to  associate  himself  with  others  in 
the  State. ^  He  makes  law,  not  a  self-sufficient  product 
existing  for  its  own  sake,  but  a  means  towards  the  moral 
education  of  man.  The  legally  constituted  State  is  a 
matter  of  necessity.  It  is  in  and  through  the  law  that 
men  are  arrayed  against  one  another,  for  government 
itself  involves  a  certain  raiistrust.  In  order  that  the 
moral  ideal  may  properly  contribute  to  the  improvement 
of  man,  the  State  dominated  by  mere  legality  must  be 
transformed  into  the  State  dominated  by  rationality. 
The  highest  phase  of  the  evolution  would  be  a  "com- 
munity of  saints,"  in  which  State  and  Church  might 
be  dispensed  with  as  no  longer  necessary.* 

(c)  Fichte's  Philosoj^hy  of  Economics.  In  his  work 
on  "The  Closed  Commercial  State,"  Fichte  develops 
his  economic  philosophy.  Of  its  fundamental  principles 
the  first  is  found   in    I'^ichte's    jihilosojihy  of  property, 

»"Collected  Works,"  III,  p.  :W4. 

2  "Collected  Works,"   III,   pp.   140-142. 

»  "Collected  Works,"  IV,  pp.  206  seq.,  2:38  seq. 

*  "System  der  Sittenlehre,"  "Collected  Works,"  IV,  pp.  23S-241. 


§33]       KANT,  FICHTE,  SCHOPENHAUER         199 

in  his  "Grundlage  des  Naturrechts."  He  there  assumes 
that  the  general  civil  contract  contains  a  contract  of 
guaranty  of  property,  and  in  addition,  a  guaranty  of 
protection.  Each  man  stakes  his  entire  possessions  as  a 
pledge  that  he  will  not  infringe  upon  the  property  of 
others;  but  the  absolute  inalienable  possession  of  all  men 
consists  in  their  ability  to  live  by  their  labor.  If  anyone 
cannot  earn  a  livelihood  by  his  labor,  then,  in  his  case, 
the  property  contract  is  broken,  and  he  is  no  longer 
bound  thereby;  it  becomes  void,  and  with  it,  the  general 
civil  contract  is  set  aside. ^ 

A  second  fundamental  principle  arises  from  the  trans- 
fer to  the  economic  field  of  Kant's  doctrine  of  the  dig- 
nity of  the  individual;  thus  transferred,  it  follows  in  an 
economic  respect  that  every  man  must  be  regarded  as 
a  self-sufficient  individual,  as  a  personal  end.  It  must 
further  be  noted  that  in  Fichte's  time  the  liberal  agita- 
tion arising  in  France  was  spreading  throughout  Europe, 
and  that  the  ideas  of  the  French  Revolution  deeply 
impressed  him,  as  appears  in  his  writings  and  in  the 
influence  of  Rousseau  upon  his  philosophy. 

Upon  these  principles  Fichte  developed  his  economic 
philosophy.  The  essential  postulate  of  the  closed  com- 
mercial State  is  that  the  State  must  guarantee  every- 
one the  right  of  existence.  "The  purpose  of  human 
activity  is  to  enable  one  to  live;  and  all  who  have  been 
granted  life  by  nature  have  the  same  claim  to  this  privi- 
lege. The  division  of  rights  must  thus  first  be  so  arranged 
that  all  may  be  able  to  exist.  Live  and  let  Hve!"^ 
Fichte,  however,  does  not  confine  himself  to  this  postu- 
late, but  sets  forth  as  a  desirable  end  an  equal  division 
of   the   means   of   subsistence   ainong   all   members    of 

^  "Grundlage  des  Naturrechts,"  "Collected  Works,"  III,  pp.  195 
seq.,  210  seq. 

^  "Der  Geschlossene  Handelsstaat,"  "Collected  Works,"  III,  p.  402. 


200  CIVIC   EMANCIPATION  [Ch.  V 

the  industrial  State. ^  His  proposals  for  carrying  out 
these  ideals  are  so  wholly  impracticable,  so  little  worthy 
of  discussion,  so  ill-suited  to  bring  about  the  desired 
results,  that  their  further  presentation  may  be  omitted.^ 
(d)  Law  and  Culture,  In  his  later  contributions 
to  the  philosophy  of  law,  Fichte  goes  beyond  the  con- 
ception of  the  legally  regulated  State,  and,  in  a  measure, 
anticipates  the  views  which  Schelling  and  Hegel  empha- 
sized and  developed.  The  legally  regulated  State  exists 
for  the  benefit  of  the  individual.  Fichte's  command  of 
the  historical  spirit  led  him  to  see  that  the  center  of 
interest  and  development  was  not  the  individual  but 
the  human  race  as  a  whole.  In  his  "Grundziige  des 
Gegenwärtigen  Zeitalters,"  it  is  the  race  and  not  the 
individual  that  appears  as  the  object  of  the  State.  The 
State  is  no  longer  conceived  as  static  but  as  a  member  of 
an  evolutionary  series  and  at  once  the  issue  thereof; 
the  "Rechtsstaat"  becomes  the  "Kulturstaat" ;^  the 
interests  of  culture  outweigh  the  importance  of  law. 
Historically  conceived,  evil  is  presented  as  the  converse 
of  that  which  makes  for  right. ^  In  his  "System  der 
Rechtslehre,"  kiw  appears  as  the  necessary  condition 
of  morality,  and  the  State  becomes  a  means  to  secure 
freedom.     Its  final  purjMJse  is  morality;  which,  achieved, 

^  "Der  Geschlossene  Handelsstaat,"  Collected  Works,"  III,  pp. 
402  seq. 

^  "Der  Geschlossene  Handelsstaal,"  "CoIIcrtcd  Works,"  III,  pp. 
408  seq. 

'  "Die  Grundziige  des  Gegenwärtigen  Zeltalters,"  "Collected 
Works,"  VII,  p.  14:i-170,  187  seq.,  221. 

<  "Die  Staatslehre,"  "Collected  Works,"  IV,  pp.  431-496,  497-600. 
"The  extension  of  the  dominion  of  reason  over  nature  advances  by 
degrees;  this  dominion  must  be  attained  up  to  a  certain  point  by  a 
co-operative  effort  and  from  such  a  point  further  progress  is  pos- 
sible to  a  yet  greater  coiuiuest,  and  to  a  clear  conception  of  purpose 
on  the  part  of  (Ik-  human  race."     (p.  .IS,').) 


§33]       KANT,  FICHTE,  SCHOPENHAUER         201 

in  so  far  tends  to  make  law  superfluous  and  to  bring 
about  its  own  dissolution.^ 

(e)  Fichte  as  a  Statesman.  In  his  "Reden  an  die 
Deutsche  Nation,"  Fichte  appears  as  a  statesman.  He 
pleads  for  an  efficient  training  and  conscious  pursuit  of 
character  to  build  up  a  new  generation  that  shall  be  of 
the  nation  and  for  the  nation.  He  pleads  for  a  national 
Germanic  consciousness  that  shall  discard  all  narrow 
limitations  within  German  lands  so  that  there  may 
arise  a  unified  Germany  composed  of  sturdy  men.  "I 
speak  for  Germany  and  of  Germans,  and  I  decline  to 
recognize,  indeed,  I  ignore  and  repudiate,  all  dis- 
sensions and  factions  which  unfortunate  events  have  foi 
centuries  produced  among  those  in  reality  forming  a 
single  nation."  ^  In  these  addresses  he  proved  himself 
an  enthusiastic  patriot,  proclaiming  the  German  national 
spirit,  and  an  effective  champion  in  the  contest  for 
German  national  development  —  as  the  protagonist  of 
a  German  empire  and  German  nation.  These  addresses 
form  his  enduring  monument;  in  them  appears  the 
greatness  of  the  man  as  a  patriot  and  as  a  spiritual 
leader  of  his  people. 

3 :  Schopenhauer.  The  importance  of  Schopenhauer 
(1788-1860)  as  a  philosopher  is  at  present  apt  to  be 
overrated;  however,  his  treatment  of  the  freedom  of 
the  will  ^  must  be  considered  in  its  bearing  on  the 
philosophy  of  law,  especially  because  it  has  recently 
and  to  my  mind  falsely,  been  regarded  as  of  large  in_ 

^  "Das  System  der  Rechtslehre  in  Vorlesungen,"  "Posthumous 
Collected  Works,"  II,  pp.  499  seq.,  515  seq.,  540-542. 

2  "Reden  an  die  Deutsche  Nation,"  "Collected  Works,"  VII,  p. 
266. 

^  "Preisschrift  über  die  Freiheit  des  Willens.  Die  beiden  Grund- 
probleme der  Ethik,"  second  edit.,  p]i.  11  seq.  (Schopenhauer's 
Works  in  six  vols.,  Grisebach  edit.,  Vol.  Ill,  pp.  391  seq.)  See  also 
Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  pp.  40-48,  78,  97  seq. 


202  CIVIC   EMANCIPATION  [Cn.  V 

fluence  upon  the  theories  of  punishment.^  Schopen- 
hauer adapted  and,  as  he  thought,  demonstrated  Kant's 
doctrine  that  the  will  is  not  free  in  the  world  of  experi- 
ence, and  is  free  only  in  the  world  of  intellect  .^  The 
sense  of  responsibility,  according  to  Schopenhauer,  finds 
its  roots  in  character:  "Operari  sequitur  esse."  The 
intellectually  free  will  is  reflected  in  character.  Scho- 
penhauer liked  to  be  regarded  as  a  disciple  of  Kant; 
as,  however,  he  upheld  the  absolute  unalterability  of 
character,  he  placed  himself  in  diametric  opposition  to  a 
principle  of  Kant's  ethics,  which  postulates  the  trans- 
formation of  the  will  or  character  from  the  natural  to 
the  moral  will.  In  his  prize  essay  "Über  die  Grundlage 
der  Moral,"  Schopenhauer  takes  Kant's  ethics  as  his 
point  of  departure;  but  influenced  by  Buddhism,  he 
accepts  the  doctrine  of  resignation,  the  negation  of  the 
will  to  live,  and  pessimism,^  Schopenhauer's  paradox 
that  injustice  is  the  positive  conception  as  opposed  to 
justice  was  doubtless  directed  against  his  successful 
contemporary,  Hegel,  who  regarded  injustice  as  the 
mere  negation  of  justice.  "Injustice  or  wrong  consists 
in  the  injury  of  another;  hence  the  conception  of  wrong 
is  positive,  and  is  antecedent  to  that  of  right,  which  is 
its  negative,  and  merely  refers  to  such  actions  as  one 
may  practice  without  injuring  others;  that  is,  without 
committing  wrong."  ^     The  existence  of  a  natural   law 

^ Berolzheimer,  "Die  Kntgeltung,"  etc.,  pp.  100-109. 

^  "Die  beiden  Grundprohlcme,"  etc.,  pp.  483  seq. 

^Schopenhauer,  "Die  Welt  als  Wille  und  Vorstellung,"  Vol.  I, 
Rr)ok  4  ("Der  Welt  als  Wille  zweite  Betrachtung:  bei  erreichter 
Selbsterkenntnis  Hcjahimgund  Verneinung  des  Willens  zum  Leben"), 
and  Vol.  II,  Hook  4  (su])])lemeiits  to  Hook  4  of  the  first  ^■oIume). 

A  supplement  to  both  of  these  writings  is  found  in  the  essay  "Zur 
Kthik,"  chap.  VII  I,  Vol.  II  of  "Paridi])omena."  * 

*  "Preisschrift  iilicr  die  (irundlage  der  Moral,"  §  17.  (Grise- 
bach  edition,  Vol.   Ml,  p.  .'")!),S.) 

♦Griscbach  ((lilion,  \ol.  V,  jip.  :;05-24ü. 


§33]       KANT,  FICHTE,  SCHOPENHAUER         203 

is  thus  presented  by  Schopenhauer.  "The  conceptions 
wrong  and  right,  as  equivalent  to  injury  and  non-injury, 
to  which  latter  also  belongs  prevention  of  injury,  are 
obviously  independent  of  positive  legislation,  and 
antecedent  to  it.  There  thus  exists  a  pure  ethical  law, 
or  natural  law,  and  a  pure  science  of  law  independent 
of  all  statutes."  ^  With  reference  to  punishment  he 
advocates  a  position  combining  the  view  that  it  is 
inflicted  in  fulfillment  of  the  law  ("Bewährungstheorie") 
with  the  view  that  its  purpose  is  the  prevention  of 
crime. ^ 

See  also  Schopenhauer,  "Die  Welt  als  Wille,  etc.,"  Vol.  I,  Book  4, 
§  62,  p.  400.  (Grisebach  edition.  Vol.  I,  pp.  437  seq.)  "Parerga 
und  Paralipomena,"  Vol.  II,  chap.  9,  "Zur  Rechtslehre  und  Politik" 
(Grisebach  edition,  Vol.  V,  pp.  247  seq.).  See  sXsoEd.  v.  Hartmann, 
"Phänomenologie  des  sittlichen  Bewusstseins,"  Berlin  1879,  pp. 
50G-512;  Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  p.  231. 
At  one  point  Schopenhauer  refers  to  a  passage  in  Grotius  which, 
however,  he  wrongly  interprets.     See  above. 

^  "Preisschrift  über  die  Grundlage  der  Moral,"  §  17  (Grisebach 
edition).   Vol.   Ill,   p.   598. 

See  also  Schopenhauer,  "Die  Welt  als  Wille,"  etc..  Vol.  I,  Book 
IV,  §  62,  Grisebach  edition,  Vol.  I,  p.  440. 

^  "On  the  other  hand  it  is  certain  that  apart  from  the  State  there 
is  no  right  of  punishment.  All  right  to  punishment  is  based  upon 
the  positive  law  alone,  which  before  the  offense  has  determined  a 
punishment  for  it,  the  threat  of  which,  as  a  counter-motive,  is  in- 
tended to  outweigh  all  possible  motives  for  the  offense.  This  posi- 
tive law  is  to  be  regarded  as  sanctioned  and  recognized  by  all  the 
citizens  of  the  State.  .  .  .  Consequently  the  immediate  purpose  of 
punishment  is,  in  the  particular  case,  the  fulfillment  of  the  law  as  a 
contract.  But  the  one  purpose  of  the  law  is  deterrence  from  the 
infringement  of  the  rights  of  others.  It  is  in  order  that  every  one 
may  be  protected  from  suffering  wrong  that  men  have  combined 
to  form  a  State.  .  .  .  Thus  the  law  and  the  fulfillment  of  it,  the 
punishment,  are  essentially  directed  to  the  future,  not  to  the  past. 
This  distinguishes  punishment  from  revenge;  for  the  motives  which 
instigate  the  latter  are  solely  concerned  with  what  has  happened, 
and  thus  with  the  past  as  such."  ("Die  Welt  als  Wille  und  Vorstel- 
lung."    Haldane's  translation.  Vol.  I,  p.  448.) 


204  CIVIC  EMANCIPATION  [Ch.  V 

§  34.  Schelling  and  the  Historical  School.  1 :  Schel- 
LiNG.  ^  Schelling's  (1775-1854)  influence  upon  the  phil- 
osophy of  law  lies  in  the  foundation  which  his  contri- 
butions supplied  for  the  historical  school,  representing 
the  definitive  break  with  the  position  of  "natural  law." 
Yet  Schelling's  importance  for  the  philosophy  of  law  is 
not  confined  to  his  doctrines  bearing  especially  upon 
this  field.  His  work,  "Die  neue  Deduktion  des  Natur- 
rechts," 2  consists  of  a  series  of  principles  and  brief 
considerations  which  in  the  main  present,  in  an  altered 
form,^  Kant's  and  Fichte's  legal  philosophy;  it  reflects 
Schelling's  extreme  idealism,  yet  contains  many  sug- 
gestive passages  bearing  upon  the  nature  of  law.  "Exist 
in  the  highest  sense  of  the  word;  cease  to  be  a  mere 
appearance;  strive  to  become  a  real  being:  such  is 
the  supreme  demand  of  practical  philosophy."  '*  To 
be  such  a  real  being,  or  "absolutely  free,"  man  must 
strive  untrammeled,  and  be  independent  of  any  power 
other  than  his  own  autonomy.^     Autonomy  as  experi- 

^  The  writings  of  Schelling  here  pertinent  are:  "Neue  Deduktion 
des  Naturrechts,"  1795,  "Collected  Works,"  Part  I,  Vol.  I,  Stutt- 
gart and  Augsburg  1856,  pp.  245-280.  "Ueber  die  Methode  des 
akademischen  Studiums,"  Tübingen  1803,  second  edition,  Stutt- 
gart and  Tübingen  1813.  "System  des  transzendentalen  Ideal- 
ismus," Tübingen  1800.  "Philosophische  Untersuchungen  über 
das  Wesen  der  menschlichen  Freiheit  und  die  damit  zusam- 
menhängenden CiCgenstände,"  1S09,  "("ol.  Works,"  Part  I,  Vol.  7, 
1860,  pp.  331-416.  "Kinleitung  in  die  Philosophie  der  Mythologie," 
5.  Vorlesung,  "(Ol.  Works,"  Part  II,  Vol.  I,  pp.  94-118. 

''Schelling  himself  designates  in  an  appendix  his  "Neue  Deduk- 
tion des  Naturrechts,"  as  aphorisms.  He  had  in  prospect  a  com- 
mentary thereon.     "Collected  Works,"  Part  I,  Vol.  I,  p.  280. 

*  Corresponding  1o  Schelling's  general  philosophy  of  his  first  period 
which  in  conlcnt  is  essentially  Ficlitean.  See  Berolzheimer, 
"System,"  etc..  Vol.   I,   pp.  89  92. 

*  "Neue  Deduktion,"  clc,   §  3. 
«"Neue    Deduktion,"   etc.,    §§4  8. 


§34]  THE  HISTORICAL  SCHOOL  205 

enced  is  life  or  the  active  causality  of  the  subject.^  The 
expression  of  the  subject  is  restricted  by  the  physical 
antagonism  of  nature  and  also  by  other  subjects  in  the 
moral  world. ^  It  is  the  problem  of  ethics  to  maintain 
the  freedom  of  each  through  the  freedom  of  all.  "The 
individual  will  is  limited  by  the  general  will  only  in  that 
it  becomes  absolute  through  such  restriction";^  and  it 
is  absolute  only  "  in  that  it  is  restricted  by  the  limita 
tion  of  the  general  will."  According  to  Schelling,  "the 
supreme  command  of  ethics  is  to  conduct  yourself  in 
such  manner  that  your  will  may  become  absolute  will, 
that  the  whole  moral  world  - —  that  is,  the  world  of 
intellectual  individuals  —  can  will  your  action  in  con- 
tent and  form.  So  conduct  yourself  that  through  your 
action  no  rational  being  is  made  a  mere  object,  but 
always  a  co-operative  subject."  ^  In  their  highest  stages 
ethics  and  law  coincide.  "Ethics  solves  the  problem 
of  the  absolute  will  in  that  it  makes  the  individual  will 
identical  with  the  general  will;  the  science  of  law  solves 
the  problem  in  that  it  makes  the  general  will  identical 
with  the  individual  will.  Were  each  completely  to 
solve  its  respective  problem,  they  would  cease  to  be 
opposed  sciences."  ^  For  the  rest,  law  and  ethics  are 
distinct:  the  ethical  is  subject  to  the  command  of 
duty;  the  legal  is  what  is  authorized.  In  developing 
the  nature  of  law  on  this  basis,  Schelling  rightly  recog- 
nized that  law  constitutes  he  primary  warrant.  "What- 
ever is  theoretically  possible  I  have  the  power  to  do; 
whatever  is  practically  possible  I  may  do;  what  I  may 
do  corresponds  with  what  is  right,  as  the  term  is  ordinarily 

^  "Neue  Deduktion,"  etc.,  §  9. 

2  "Neue  Deduktion,"  etc.,  §§  10-24. 

3  "Neue  Deduktion,"  etc.,  §  44,  §§  30-44. 
*"Neue  Deduktion,"  etc.,  §  45. 

^  "Neue  Deduktion,"  etc.,    §  72. 


206  CIVIC   EMANCIPATION  [Ch.  V 

used;  and  the  practical  possibility  by  means  of  which 
anything  becomes  right  is  what  is  meant  by  law."  ^ 

He  further  distinguishes  between  the  content  and 
form  of  the  permissible,  the  lawful.  The  content  of 
the  permissible,  or  the  content  of  law,  is  the  law  as 
sanctioning;  that  is,  the  authorization  which  is  created 
by  the  law  for  the  conduct  of  the  individual.  But  the 
law  is  at  the  same  time  a  limiting  force,  or  a  restricting 
norm;2  and  this  fundamental  function  of  the  law  Schel- 
ling  terms  the  form  of  the  permissible  or  of  the  legal. 
Every  rightly  permissible  action  is,  according  to  Schelling, 
at  first  a  general  permission,  and  secondly,  also  a  limited 
permission.*  This  general  permission  furnishes  the 
content  of  the  law;  the  limitation  or  restriction  within 
a  given  realm  of  what  is  permitted  is  the  form  of  the  law. 
Thus  the  content  of  legally  permitted  action  is  limited 
by  the  law.  "The  content  of  the  law  is  determined  by 
the  form  of  the  law  and  not  vice  versa} 

Schelling  distinguishes  the  individual  from  the  general 
will ;  ^  the  former  corresponds  to  what  in  his,  and  Fichte's 
theoretical  philosophy,  becomes  the  ego;  the  general 
will  corresponds  to  the  absolute." 

The  most  direct  principle  of  the  law  enunciates  that 
"you  may  do  anything  whereby  you  express  the  con- 
tent of  your  will  in  so  far  as  it  is  conditioned  by  the 

1  "Neue  Deduktion,"  etc.,    §  65. 

2  "Neue  Deduktion,"  etc.,  §§77,  78,  79,  and  so  on. 
'Schelling's  expression  is  as  follows   ("Neue  Deduktion,"    §  78): 

"Ich  darf  überhaupt,  und  ich  darf  etwas."  "l  am  permitted  to  act, 
and  I  am  permitted  to  act  in  a  specific  way."  One  may  thus  dis- 
tinguish between  the  content  and  the  form  of  the  permission. 

*"Neue  Deduktion,"  etc.,  §§  79  with  77. 

'"Neue  Dc(hik(ion,"  §§  79  seq. 

'^Berolzheimcr,  "System,"  clc,  Vol.  I,  pp.  S.')-02;  Schelling, 
"System  des  TranszoiirUntali'n   Idcalisnuis,"  pp.  St)  seq. 


§34]  THE  HISTORICAL  SCHOOL  207 

form  thereof."  ^  All  problems  of  legal  philosophy  are 
concerned  with  the  possibility  of  expressing  the  form 
of  the  will,^  and  must  be  derived  from  the  contrast  of 
the  form  to  the  content  of  the  will.  The  analysis  of 
the  chief  legal  principles  yields  the  following:  "The 
right  of  moral  freedom  in  contrast  to  the  general  will, 
that  is,  the  complete  right  of  the  individual  will  with 
reference  to  law-abiding  as  well  as  law-defying  actions 
on  their  content  side;  right  in  contrast  to  the  individual 
will,  that  is,  the  right  of  formal  equality,  or  the  right 
of  the  self-assertion  of  the  ego,  —  the  right  to  express 
one's  own  individuality  in  opposition  to  that  of  any 
other;  right  in  contrast  to  will  in  general,  that  is,  the 
right  to  the  world  of  experience,  to  things  and  objects 
in  general,  or  natural  right  in  the  narrower  sense."  ^ 
Schelling  follows  Kant  *  in  not  assuming  the  freedom 
of  the  will  in  the  world  of  experience,  and  in  holding  it 
not  valid  for  that  world,  but  only  for  the  intelligent 
subject  or  ego,  which  for  Schelling  is  the  world  of  reason, 
"Free  action  follows  directly  from  the  intelligent  factor 
in  man."  ^ 

In  the  fifth  lecture  of  the  "Einleitung  in  die  Philoso- 
phie der  Mythologie,"  Schelling  raises  the  question  as 
to  the  origin  of  races.  Such  a  question  would  be  made 
superfluous  either  by  the  assumption  that  "races  have 
always  existed,"  or  by  the  opposite  assumption  that 
"races  originated  spontaneously."  According  to  Schel- 
ling only  the  second  is  w^orthy  of  discussion,  and  would 

1  "Neue    Deduktion,"    §  8cS. 

^  "Neue  Deduktion,"   §§  91  seq. 

^  "Idealism  first  placed  he  doctrine  of  freedom  in  the  realm  in 
which  alone  it  is  intelligible."  "Philosophische  Untersuchungen 
über  das  Wesen  der  Menschlichen  Freiheit,"  etc.,  "Collected  Works," 
I,  Vol.   7,  p.  383. 

*  "Untersuchungen,"  etc.,  "Collected  Works,"  I,  \'ol.  7,  p.  384. 

6  "Neue  Deduktion,"  §  140;    also  §§96-109,  110-140. 


208  CIVIC  EMANCIPATION  [Ch.  V 

imply  that  mces  spontaneously  arose  from  the  constant 
increase  of  generations.  But  this  assumption  will  not 
hold;  for  by  such  process  there  would  arise  only  tribes, 
and  not  races. ^  The  essential  criterion  of  the  diversity 
of  races  is  that  the  different  races  represent  hetero- 
geneous divisions  of  humanity.  But  the  decisive  factors 
in  the  origin  of  such  diversity  could  only  have  been 

'internal  causes,  that  is,  causes  spontaneously  arising 
within  a  homogeneous  humanity."  ^ 

Schelling's  views  on  the  study  of  history  and  juris- 
prudence —  the  association  of  the  two  being  significant  — 
form  the  subject  of  a  lecture  in  his  "Vorlesungen  über 
die  Methode  des  Akademischen  Studiums."  It  is 
commonly  assumed  that  the  events  of  nature  are  neces- 
sarily fixed,  but  that  this  does  not  apply  to  human 
history.  History  merely  repeats  and  copies  nature 
in  the  ideal;  to  nature  in  the  real  world  there  corre- 
sponds history  in  the  ideal.^  Hietory  may  be  con- 
sidered either  em])irically,  or  from  the  point  of  view  of 
the  absolute,  in  which  latter  case  events  are  presented 
as  the  mere  appearance  of  the  absolute.  The  empirical 
treatment  of  history  may  proceed  either  pragmatically, 
or  by  mere  determination  of  facts  —  historical  re- 
search, which  includes  but  one  part  of  historical  science. 
The  pragmatic  method  in  history  sets  forth  the  histori- 
cal material  "in  a  special,  not  a  general  aspect,"  whereby 
the  universality  of  history  is  destroyed.  History  as  a 
science  consists  in  the  synthesis  of  facts  with  ideas 
so   that   facts   become   the   expression   of   ideas.     Such 

»"Collected  Works,"  I»art  II,  Vol.  I,  p.  94. 

*  "Collected  Works,"  11,  J,  \)\).  90  secj. 

'  "V'orlcsimj,'(Mi  über  die  Methode  des  Akad.,"  etc.,  pp.  213  scq. 
"If  pure  siihstaiice  ("an  sich")  could  be  recofjiiized  in  both  (that 
is,  in  nature  and  in  IiIsIoin  ),  we  would  sic  ]>iclured  before  us  what  is 
ideal  in  history  to  be  real  in  nature." 


§34]  THE  HISTORICAL  SCHOOL  209 

phase  of  history  is  not  philosophy,  because  philosophy 
"holds  aloof  from  reality  and  is  wholly  ideal  while 
history,  though  pertaining  to  the  world  of  reality,  must 
also  remain  ideal."  This  preferred  method  of  treating 
history,  "the  third  and  absolute  point  of  view  of  his- 
tory," is  the  historical  art.^ 

The  practical  sciences,  including  the  science  of  law, 
are  distinguished  from  philosophy  by  their  empirical 
content,  "by  the  historical  factor."  Only  such  phases  of 
the  historical  part  of  jurisprudence  fall  within  the  field 
of  science,  "as  constitute  a  statement  of  ideas.  Thus 
it  is  not  that  phase  which  is  finite  in  nature,  as  are  all 
forms  of  laws,  that  depends  solely  upon  the  external 
machinery  of  the  State.  The  latter  comprises  most  of 
what  is  at  present  taught  as  the  science  of  law,  and  in 
which  the  spirit  of  public  affairs  but  very  sparingly 
persists."  ^ 

A  type  of  study  that  is  not  merely  pragmatic,  but 
artistic  and  historical,  is  applicable  to  the  form  of  public 
life;  for  such  life  "presents  necessary  issues  and  may 
be  conceived  according  to  its  particular  conditions  as 
the  opposition  of  the  incoming  to  the  outgoing  forms." 
Private  life,  however,  including  private  law,  is  detached 
from  the  public  phases  thereof,  and  in  such  detachment 
retains  so  little  of  absoluteness  "as  in  nature  attaches 
to  the  existence  of  individual  bodies  and  their  particular 
relations  to  one  another."  ■■*  In  this  statement,  which  goes 
somewhat  beyond  his  purpose,  Schelling  expresses  an  im- 
portant thought.  The  modern  development  of  law,  from 
the  Renaissance  to  the  last  quarter  of  the  nineteenth 
century,  under  the  favorable  influence  of  an  individual- 

^  "Vorlesungen,"  etc.,  pp.  214-224;  "System  des  transz.  Ideal- 
ismus," p.  420. 

^  "Vorlesungen,"  etc.,  pp.  226  seq. 
'"Vorlesungen,"  etc.,  pp.  228  seq. 


210  CIVIC  EMANCIPATION  [Ch.  V 

istic  view  of  natural  law,  has  tended  to  separate  private 
from  public  law,  so  that  each  seems  to  maintain  an  inde- 
pendent existence  in  the  State.  It  is  only  under  the 
influence  of  socialism  that  there  has  appeared  an  intimate 
association  of  public  and  private  law,  and  likewise  a  per- 
meation of  private  law  with  the  spirit  of  social  ethics. 
Yet  this  is  but  a  transitional  stage,  and  one  of  the 
foremost  problems  of  every  future  philosophy  of  law 
will  consist  in  reinstating  the  philosophical  connection 
between  private  and  public  law.  According  to  my  view 
of  legal  philosophy  the  common  issue  of  the  two  realms 
is  determined  by  the  possibility  of  such  distribution  of 
force  within  the  State  that  the  artificial  legal  position  of 
vantage  of  the  individual  throu^-h  his  status  in  private 
law  shall  at  the  same  time  increase  the  position  of 
vantage  of  the  State.  The  modern  attainment  of  indi- 
vidual freedom  thus  appears  safeguarded  as  against  the 
community,  and  at  the  same  time  there  is  established 
the  intimate  association  of  public  and  private  law,  and 
the  elevation  of  private  rights  from  their  significance  to 
the  individual  to  a  matter  of  interest  to  the  political 
community,  to  the  State.  According  to  Schelling  legal 
science  deserves  the  name  only  in  so  far  as  it  is  open  to 
an  liistorical  and  not  merely  pragmatic  study,  that  is,  in 
so  far  as  it  may  be  set  forth  in  its  legal  determination 
as  a  component  of  the  absolute,  as  the  expression  of  a 
su])reme  idea.' 

In  nature  the  absolute  exists  in  itself,  "an  sich";  in 
history  it  exists  for  a  purpose,  "für  sich";  it  becomes 
oljje(ti\e.  Tlie  issues  of  history  are  thus  parts  of  the 
organism  of  tlie  absolute.  Tnasnuuh  as  all  objects  are 
prf)flucts  of  the  mind,  and  unconscious  mind  is  an  un- 
consciousl)'  realizing  ])urpose,  all  objects  a])i)ear  as  parts 
of  a  j)n>gressivc  organi/alion  whose  highest  aim  is  free- 

'  "V'orlusunurn,"    etc.,    pji.    '.^'7   '22'.). 


§34]  THE  HISTORICAL  SCHOOL  211 

dorn.  The  State  is  likewise  an  organic  construction  — 
like  man,  an  organism  within  the  cosmic  organism.' 
Schelling  conceives  the  philosophy  of  law  not  as  an  issue 
of  natural  law  already  attained,  and  in  course  of  develop- 
ment, thus  at  once  breaking  with  the  naturalistic 
point  of  view  and  establishing  the  foundations  for  the 
historical  school  of  law.^  The  idea  of  the  perfect  State 
will  be  achieved  "whenever  the  particular  and  the  gen- 
eral form  an  absolute  unity,  whenever  all  that  is  neces- 
sarily free  and  all  that  freely  occurs  also  necessarily 
occurs."  The  State  must  be  primarily  conceived  as  a 
realized  organization.-^ 

2:  Other  Representatives  of  the  Historical  School. 
Under  the  stimulus  of  Herder's*  ideas  upon  historical^ 

^"System  des  Transz.  Ideal.,"  especially  pp.  322-451,  593-597; 
also  "Phil.  Unters,  über  das  Wesen  der  Menschl.  Freiheit,"  "Col- 
lected Works,"  I,  I,  pp.  382-387. 

^  "System  des  Transz.  Ideal.,"  p.  232:  "The  first  effort  of  every 
one  who  desires  to  attain  a  free  understanding  of  the  positive  science 
of  law  and  government  must  be  to  acquire,  by  means  of  philosophy 
and  history,  a  vital  view  of  the  modern  world  and  of  the  forms  of 
public  life  which  it  demands.  One  can  hardly  foresee  what  means 
of  culture  may  be  available  in  this  science  if  it  could  be  treated  in 
an  independent  spirit,  free  from  any  bearing  upon  practice." 

^"Vorlesungen,"  etc.,  pp.  229,  234;  "System  des  Transz.  Ideal- 
ismus," pp.  411  seq.,  422  seq. 

Jurisprudence  is  therefore  not  a  part  of  ethics,  nor  indeed  of  any 
practical  science,  but  is  a  purely  theoretical  discipline  "which  serves 
the  function  for  freedom  which  mechanics  serves  for  motion,  in 
that  it  merely  deductively  sets  forth  the  natural  mechanism  under 
which  free  beings  may  be  thought  of  in  interaction  —  a  mechanism 
which  doubtless  can  be  attained  only  through  freedom  and  to  which 
nature  contributes  nothing."     "System  des  Transc.  Ideal.,"  p.  406. 

*  Herder,  "Ideen  zur  Philosophie  der  Geschichte  der  Mensch- 
heit," Riga  and  Leipzig,  1785-1792,  Part  I,  pp.  294  seq.  312  seq.; 
Part  II,  pp.  189  seq.,  301  seq. 

*0n  the  historical  school  in  general  see  Stahl,  "Geschichte  der 
Rechtsphilosophie,"  pp.  563-582.     Geyer,  "Geschichte  und  System 


212  CIVIC  EMANCIPATION  [Ch.  V 

development,  Hugo  (1768-1844)  rejected  "natural 
law,"  became  the  founder  of  the  historical  school,  and 
foreshadowed  the  organic  conception  of  the  genesis  of 
law  and  government.  Hugo  interprets  the  philosophy 
of  positive  law  to  be  the  "rational  conception  of  what 
maybe  legally  right." ^  Metaphysical  deductions  are 
pertinent  only  on  their  formal  side;  the  content  must 
be  derived  from  experience  and  history.- 

These  views,  which  reflect  Schelling's  philosophy, 
attain  their  most  distincti\e  and  characteristic  develop- 
ment in  the  brilliant  jurist,  Savigny^  (1779-1861), 
and  in  Puchta^  (1798-1846);  and  likewise  in  Niebuhr 
and  Eichhorn.  Savigny  and  Puchta  made  a  thorough 
study  of  the  origin  and  development  of  positive  law. 
Savigny  held  that  in  primitive  conditions  civil  rights 
are  as  characteristic  of  the  status  of  a  people  as  are  their 
language,  their  customs,  their  constitution.  Such  phe- 
nomena are  not  detached  results,  but  "appear  only  as 
one  of  several  expressions  and  activities  of  a  people, 
which  are  really  one,  and  become  separate  only  in  our 

der  Rechtsphilosophie  in  Griin(Izüt;en,"  jip.  96-99.  Ahrcns,  "Natur- 
recht,"  I,  i)p.  169-178.  Lassoii,  "System  der  Rechtsphilosophie," 
pp.  18  seq. 

'  "I.ehrbuch  eines  Zivilistischen  Kursus,"  Vol.  I,  containing  the 
juridical  Encyclopedia,  Berlin  1799,  4th  edit.,  1811,  2  vols.  "Lehr- 
buch des  Naturrechts  als  einer  Phik^sophie  des  posili\'en  Rechts," 
Berlin  1799. 

2  "Lehrbuch  des  Naturrechts,"  §§  18,  ,52,  M.  Also  "Lelirbuch 
des  Naturrechts,"  §  VZi.     "Lnzykloi)ädie,"  4th  edit.,  §§20,  21. 

ä"Vont  Beruf  unsrtT  Zeit  für  ("leselzj^ebung  und  Rechtswissen- 
schaft," [U\  cilil.,  Heidelberg  1810,  pp.  S  15  ("Entstehung  des 
positiven  Reciits").  "System  (ks  heutigen  Römischen  Rechts," 
Vol.  I,  Berlin  1840,  pp.  XIII-XVI,  13-18  ("Allgemeine  Entstehung 
dea  Rechts"). 

«"Das  Ccwohnheitsrechl,"  I,  l'.rlaiigcu  1828,  pp.  133-143 
("Entstehung  des  Rechts  überhaupt.  Kursus  der  Institutionen"). 
Vol.  I,  Leipzig  1841,  pp.  23-27,  35-37. 


§34]  THE  HISTORICAL  SCHOOL  2L3 

study  thereof.  What  binds  them  together  in  a  whole 
is  the  common  conviction  of  a  people,  the  same  sense 
of  inner  compulsion  that  excludes  any  thought  of  an 
accidental  or  arbitrary  origin."^  Law,  like  language, 
stands  in  organic  connection  with  the  nature  or  charac- 
ter of  a  people  and  evolves  with  the  people.  "Law  grows 
as  the  people  grow,  develops  with  the  people,  and  de- 
clines when  the  people  lose  individuality."^  As  sum- 
marized by  Savigny,  "Law  arises  according  to  what  the 
prevalent,  though  not  quite  pertinent  phrase  calls 
'customary  law,'  that  is,  it  is  first  produced  by  custom 
and  popular  belief,  and  then  re-enforced  by  jurisprudence. 
Throughout  it  is  the  result  of  inner,  silently  working 
forces,  not  of  the  arbitrary  will  of  a  law-giver."^  Accord- 
ing to  Savigny,  positive  law  may  also  be  called  popular 
law-because  it  lives  in  the  common  consciousness  of  the 
people;  but  it  there  prevails,  not  as  abstract  regula- 
tion, but  as  "the  living  conception  of  legal  institutions 
in  their  organic  connection."^ 

Quite  similarly  Puchta  presents  law  as  the  expression 
of  a  popular  spirit,  as  the  result  of  popular  activity, 
which  "legally  establishes  not  the  individual  as  such, 
nor  as  a  member  of  the  family,  but  as  a  member  of  the 
people  —  the  legal  function  thus  belonging  exclusively 
to  the  people."  In  this  respect  law  is  set  off  against  moral 
conviction,  which  may  be  entertained  by  the  individual, 
the  family,  or  the  people.  The  entire  body  of  the  law 
is  a  national  possession  and  a  national  product;  and 
the  conviction  of  the  people  is  its  source.^ 

*  "Vom  Beruf  uiisrer  Zeit,"  etc.,  p.  8. 
^  "Vom  Beruf,"  etc.,  p.  11. 

'  "Vom  Beruf,"  etc.,  pp.   13  seq. 

*  "System,"  I,  pp.  14,  16.     "Kursus  der  Institutionen,"  p.  35. 

'"Das  Gewohnheitsrecht,"  I,  pp.  138  seq.,  141-143.  "Kursus 
der  Institutionen,"  pp.  24,  29,  35. 


214  CIVIC   EMANCIPATION  [Ch.  V 

Harms  ^  (181P-1880)  may  be  mentioned  as  a  later 
adherent  of  this  "organic"  theory  of  law,-  by  reason  of 
his  view  that  "popular  law,  due  to  custom,  is  further 
developed  by  the  legislation  of  the  State,  by  experience, 
and  by  the  reactions  of  consciousness  and  will.  The 
several  stages  of  law  present  the  same  relation  as  obtain 
elsewhere  in  historical  development,  between  the 
natural  issues  of  habit  and  the  rational  processes  of 
consciousness  and  will." 

The  historical  conception  has  superseded  the  natural- 
istic or  purely  speculative  position  so  far  as  concerns 
the  principles  or  systems  of  law,  but  not  in  their  scientific 
application.  Bekker^  points  out  that  Savigny's  sys- 
tem of  natural  law  "still  retains  a  small  reserved  area" 
where  "natural  law"  persists;  for  he  continues  to  con- 
struct his  system  deductively,  and  derives  many  of  his 
positions  "from  the  nature  of  things."  Similarly  Berg- 
bohm  observes  that  the  conception  of  natural  law  was 
but  officially  driven  out  of  legal  science,  and  under  a 
disguised  name  has  continued  to  exert  a  directive  influ- 
ence. Yet  he  goes  a  little  too  far  in  his  view  that  such 
terms  as  the  "sense  of  justice"  ("Rechtsgefühl")  and 
the  idea  of  right  ("Rechtsidee")  and  similar  permanent 
and  necessary  terms  of  legal  j^hilosophy  should  be  re- 
jected as  metaphysical  or  naturalistic  conceptions.* 

'  "Bcjiriff,    I'ormcn,    und    (iriiiuUcgung    der    Rechtsphilosophie," 

i)p.  i2()  i;m. 

2  "Begriff,"   etc.,   p.    134. 

^  "Über  den  Streit  der  Historischen  und  der  Pliilosophischen 
Rcchtsschnle,"  AI<ad.  KvAr,   Heidelberg  ISSt),  p.    1<.). 

■*  "Jurisprudenz  und  l\((  lUspliilosopliie,"  I.ei|)zig  1892,  p.  IX, 
lOD-fj.TJ.  ("Das  Naluncilii  der  ( .egenwart.")  Stammler:  "\Jh(:i- 
flic  MelhodcdcrGcs(  ln(  hilii  licii  Rechtsthcorie,"  Halle  a/S  1S8S,  pp. 
2K  48,  undertakes  to  i)ro\e  tii.'.l  the  historical  theory  of  law  has 
not  .superseded  "natural  law." 


§  35]  HEGEL  AND  THE  HEGELIANS  215 

The  historical  treatment  of  law,  which  nowadays  under 
the  influence  of  the  historical  school  in  legal  science 
and  philosophy  has  become  the  dominant  one,  is  applied 
to  penal  philosophy  by  R.  Löning,  who  emphasizes  that 
an  adequate  treatment  of  the  philosophical  problems 
is  possible  only  on  the  basis  of  a  comprehensive  histori- 
cal study.^  On  the  other  hand,  Jacques  Stern,  in  a 
recent  contribution,^  pleads  for  the  recognition  of  ra- 
tional law  ("Vernunftsrecht"),  side  by  side  with  posi- 
tive law.  ^ 

§  35.  Hegel  and  the  Hegelians.  1 :  Hegel's  Philoso- 
phy OF  Law.  In  the  preface  ^  to  his  philosophy  of  law 
Hegel  ^  (1770-1831)  has  well  expressed  the  purpose  of 
the  philosophic  statesman,  which  is,  not  to  construct  an 

^  "Über  Gescliichtliche  und  Ungeschichtliche  Behandlung  des 
Strafrechts,"  in  "Z.  f.  ges.  Strafr.,"  Vol.  III,  1883,  pp.  219-375. 

2  "Rechtsphilosophie  und  Rechtswissenschaft,"  Berlin  1904. 

^  To  the  law  of  reason  and  as  well  to  positive  law  belong  the  con- 
ception or  idea  of  law,  the  general  legal  conceptions  (legal  principles 
and  institutions),  and  the  general  legal  conceptions  adopted  by 
legislation  (legal  piinciples  and  institutions).  On  the  other  hand 
the  law  of  reason  in  contrast  to  the  old  natural  law  is  not  to  include 
specific  legal  principles.  But  where  is  the  point  of  division?  In 
this  respect  the  laws  of  civilized  countries  more  or  less  diverge  on 
the  basis  of  fundamental  questions.  So  far  as  this  is  not  the  case 
it  is  due  to  the  historical  fact  of  the  common  influence  of  Roman  law. 

Stern  thus  defines  the  law  of  reason:  "The  law  of  reason  is  the 
conception  which  strives  to  be  realized  as  the  idea  of  law  and  does 
so  not  under  the  moral  point  of  view  of  a  subjective  attitude  but 
under  the  objective  point  of  view  of  purpose  considered  as  an  order- 
ing principle  and  as  justice  protected  by  the  moral  reliability  of 
coercion." 

This  definition  will  scarcely  gain  for  Stern  favor  for  a  new  model 
law,  however  limited  it  may  be  to  general  considerations. 

*  "Grundlinien,"  etc.,  pp.  18  seq. 

*  "Crundlinien  der  Philosophie  des  Rechts,  oder  Naturrecht  und 
Staatswissenschaft  im  Grundrisse,"  "Collected  Works,"  Vol.  8,  Ber- 
lin 1833. 


216  CIVIC  EMANCIPATION  [Ch.  V 

ideal  State,  nor  to  inform  the  government  how  it  should 
be  conducted,  but  to  set  forth  how  a  comprehension  of 
the  nature  of  the  State  shall  be  acquired,  how  it  shall  be 
critically  interpreted.  In  the  Hegelian  philosophy  this 
postulate  assumes  a  characteristic  form ;  —  to  know  the 
State  is  to  prove  its  rationality.  "To  understand  that 
which  exists  is  the  problem  of  philosophy;  for  whatever 
exists  is  reason."^  Heretofore  the  State  and  law  had 
been  conceived  as  established  and  stable.  Schelling 
emphasized  the  developmental  factor  in  law;  law  itself 
was  fixed,  and  it  was  only  the  laws  —  the  legal  system  — 
that  were  subject  to  change.  Hegel  showed  that  gov- 
ernment and  law  were  to  be  conceived  as  plastic,  as  in  the 
course  of  evolution.  He  approached  philosophy  as  an 
historian,  and  as  a  philosopher  of  history  he  was  con- 
fronted with  the  philosophy  of  government.  It  was  his 
philosophy  of  history  as  applied  to  law  and  government 
that  became  his  philosophy  of  law. 

The  subject  of  evolution  is  the  human  will,  which  at 
the  beginning  of  the  historical  development  is  subjective, 
and  in  successive  stages  reaches  an  objective  status. 
The  subjective  will  is  the  arbitrary,  non-moral  will  of 
the  individual;  the  objective  will  is  the  moral  collective 
will.^  Morality,  however,  is  freedom,  and  not  merely 
freedom  as  a  conception,  but  a  realized  freedom  —  and 
moreover  freed(jm,  not  merely  as  existing  in  the  world, 
but  as  the  content  of  the  world  and  of  the  human  mind.' 

•  "Gruncllinicn,"  etc.,  p.  19. 

2  "r.rniKlIiniiMi,"  etc.,  §§  1-3.3;  particularly  4,  7,  11,  22,  29,  33. 

'  "(".riiiKJlinien,"  etc.,  §  142,  p.  210.  "Morality  is  the  idea  of  free- 
dom, (jf  t  lie  concept  ion  of  freedom  as  attained  through  self -conscious- 
ness in  relation  to  the  world  as  presente<l,  and  to  nature."  With  this 
compare  "(Grundlinien,"  etc.  §  129,  p.  171:  "The  good  is  the  idea 
conceived  as  the  unity  of  the  will,  and  of  the  particular  will  in  which 
the  abstract  right,  as  well  as  welfare  and  subjectivity  of  the  will  and 


§35]  HEGEL  AND  THE  HEGELIANS  217 

Morality  is  the  world  with  freedom  established  —  free- 
dom of  the  community  as  well  as  of  the  individual. 
Through  morality  or  realized  freedom  the  individual 
transcends  his  accidental  or  individual  existence  and 
becomes  a  part  of  the  whole,  so  that  his  individual 
detachment  is  absorbed  and  dissolved  in  the  whole. 
But  through  this  process  the  individual  persists  in  his 
true  nature,  in  his  real  ego.  His  true  nature  thereby 
becomes  realized.  In  this  dissolution  of  the  individual 
in  the  coinmunity  lies  "the  absolute  final  purpose"  of 
the  world. ^  The  history  of  the  world  is  the  process  of 
the  emancipation  of  humanity.  Humanity  is  forcibly  led 
to  freedom  in  the  State  and  through  the  State.  In 
Asiatic  States  the  indi\'idual  is  wholly  without  freedom; 
in  the  State  of  the  Greeks  and  Romans  he  is  partly 
free;   in  modern  States  he  is  quite  free. 

2 :  Law  and  the  Human  Will.  In  Hegel,  as  in  Kant  and 
Fichte,  government  and  law  find  their  justification  not 
in  any  external  grounds  but  because  they  are  "the 
absolute  demands  of  the  practical  reason. "^  The  source 
of  law  is  the  will,  and  the  will  is  free.  To  will,  means 
the  capacity  to  reach  a  free  decision.'^  Freedom  consti- 
tutes the  substance  and  detemiination  of  the  will.^  The 
subjective  will  which  exists  antecedent  to  the  State  is 
only  free  in  itself;  it  is  a  natural  or  immediate  will, 
being  immediate  because  only  direct  impulses  form 
efficient  and  determining  motives,  such  as  instincts, 
desires,   dispositions.     While  in    the    Hegelian   panthe- 

the  circumstance  of  objective  being,  are  conceived  as  independent, 
while  yet  in  their  nature  contained  and  containing.  It  is  freedon, 
realized,  the  absolute  final  purpose  of  the  world." 

*  "Grundlinien,"  etc.,  §  129;   see  previous  note  5. 
^Lasson,  "System  der  Rechtsphilosophie,"  p.  104. 

^  Hegel  might  have  referred  to  the  etymology,  which  derives 
"Wollen"  from  "Wählen." 

*  Hegel,  "Grundlinien,"  etc.,   §  4. 


218  CIVIC  EMANCIPATION  [Ch.  V 

istic  system  this  form  of  will  must  also  be  rational,  yet 
its  rationality  is  relative.  The  will  as  antecedent  to 
the  State  has  indeed  a  content  derived  from  "the  ration- 
ality of  the  will,"  but  is  "not  yet  rational  in  form." 
Form  and  content  are  as  yet  distinct.  It  is  rational  in 
regard  to  the  willing  subject,  but  it  is  not  yet  wholly 
rational  with  reference  to  the  community.  It  is  "a  will 
finite  in  itself."^  The  will  transcends  its  limitation 
through  the  "purification  of  the  instincts";  it  achieves 
universality  and  becomes  the  absolutely  rational  or 
moral  will,  "in  that  it  contains  within  itself  universality 
as  the  infinite  form  of- its  content  and  purpose.  It 
becomes  the  free  will,  the  true  idea,  not  only  in  itself 
but  also  for  itself."^  The  will  thus  elevated  from  the 
natural  to  the  moral  state  is  absolutely  free.  It  is  a 
will  existing  in  and  for  itself.  It  is  infinite,  real,  rational. 
It  exists  and  has  reality.  Such  existence  of  the  free 
will  is  guaranteed  by  the  law;^  fundamentally  the  law  is 
DurTtliFTealization  of  the  free  will,  and  by  virtue  thereof 
is  itself  real.  "The  law  is  holy  because  it  is  the  reali- 
zation of  the  absolute  conception  of  self-conscious 
freedom."'* 

"A  legal  system  is  the  realm  of  realized  freedom."^ 
The  structure  of  the  law  will  vary  according  to  the  stage 
of  evolution  which  the  process  of  the  emancipation  of 
the  will  in  humanity  has  attained.  The  several  stages 
of  the  evolution  of  the  will  correspond  to  the  several 
stages  of  the  development  of  freedom,  and  concur  with 
the  several  periods  of  legislation.     The  higher  the  stage 

'  "(Grundlinien,"  etc.,   §11. 

*  "Grundlinien,"  etc.,  §  21,  also  §§  19,  20,  22. 

*  "(jrundlinien,"  etc.,  §  29:  "This  which  is  being  in  general,  the 
being  of  a  free  will,  is  law." 

*  "( "iriiiHlliiiicn,"  etc.,   §  'U). 
'  See  above. 


§  35]  HEGEL  AND  THE  HEGELIANS  219 

that  the  will  has  obtained  in  its  development,  the  richer 
and  more  adequate  is  its  legal  counterpart.*  Thus 
Hegel  demonstrates  the  rationality  of  law,  and  brings 
the  fact  of  constantly  changing  legal  construction  under 
his  universally  rationalized  system.  This  position  forms 
a  distinctive  break  with  the  doctrine  of  natural  law. 
Natural  law  recognizes  only  a  model  law.  Hegel  shows 
the  rationality  of  the  law  to  be  one  which,  though  vary- 
ing in  its  changeable  forms,  presents  each  successive  legal 
construction  as  rational  in  that  it  corresponds  to  a 
definite  stage  of  evolution  of  the  will. 

3:  Hegel's  Dialectic.  This  comprehensive  and 
fundamental  position  of  the  Hegelian  philosophy  of 
government  and  law  is  not  presented  and  deduced  by 
Hegel  in  the  manner  of  my  e^  position.  His  presentation 
contains  mannerisms  that  seem  to  be  inevitable  accom- 
paniments of  the  dialectic  method. 

Hegel  is  the  last  great  rationalist.  The  "Cogito"  of 
Descartes,  with  which  rationalism  made  its  appearance 
in  modern  philosophy,  has  in  Hegel  become  an  impersonal 
thinking,  —  "Es  denkt."  The  Hegelian  reason  appears 
"as  an  absolute,  subjectless,  universal  reason.  It  is  pure 
/thought,  that  is,  without  a  thought  of  object.  It  is  self- 
/  sufficient  thought,  'substantielles,'  that  is,  without  a 
(  thinking  subject.  It  is  thought  containing  in  itself  its 
own  laws  which  the  philo«opher  but  discovers  by  his 
dialectical  method;  while  thought  derives,  creates,  pro- 
duces from  within  itself,  the  conception  which  it  bears 
and  which    constitutes  its  nature." 

The  cosmic  evolutionary  process,  and  the  form  which 

^  Hegel,  "Grundlinien,"  etc.,  §  30:  "The  formalism  of  law,  however, 
(and  later  of  duty),  arises  from  the  difference  in  the  development  of 
the  conception  of  freedom  as  against  the  more  formal,  that  is,  the 
more  abstract,  and  therefore  the  more  limited  law;  there  is  a  sphere  or 
stage  of  the  mind  which  attains  a  yet  higher  law  in  which  it  carries  to 
definition  and  reality  the  further  factors  contained  in  the  idea." 


220  CIVIC   EMANCIPATION  [Ch.  V 

it  assumes  in  government  and  law,  are,  according  to 
Hegel,  not  objective  processes  but  rational  or  logical  ones. 
It  is  pure  impersonal  thought  which  in  Hegel's  idealistic 
pantheism  comprises  the  world  in  itself.  The  problem  of 
the  legal  philosopher  is  not  to  derive  the  process  of 
development  from  the  empirical  world,  but  to  deter- 
mine the  laws  of  pure  thought,  to  comprehend  pure 
thought  in  its  dialectic  process  of  evolution.  Philosoph- 
ical or  true  knowledge  finds  "in  the  concept  alone  the 
basis  of  its  nature."^  The  philosopher  must  trace  to 
their  source  the  dialectic  movements  of  the  conception; 
and  these  are  "pure  autonomous  movements  which  one 
might  call  souls,  were  it  not  that  the  conception  thereof 
indicates  something  superior.'"-  The  general  forms 
and  determinations  of  pure  or  ol)jectless  thought,  which 
contains  thought  in  itself  without  being  directed  to  an 
object,  are  the  conceptions  of  being,  not-being,  quality, 
quantity,  cause,  action,  etc.  They  are,  to  speak  fig- 
uratively, the  members  by  means  of  which  pure  thought 
moves.  Pure  thought,  however,  requires  a  method  of 
progression.  This  method  is  an  oscillation.  The  con- 
cept posits  itself  constituting  "the  abstract  moment," 
and  at  once  goes  over  to  its  opposite  and  thus  dissolves 
itself,  constituting  "the  dialectic  moment."  But  out  of 
such  affirmation,  which  is  also  denial,  being  the  concept 
of  an  object  and  of  its  oj^posite,  arises  a  third,- — -the 
unity  of  these  mutual  dissolutions  as  the  truth  of  both, 
constituting  "the  speculative  or  positive  rational 
moment."  The  dialectic  method  serves  not  merely  for 
analysis  but  to  make  ]:)ossil)le  a  synthetic  construction.^ 

'  Ilcgd,  "l'liänomenolo^ie  des  Gcislcs,"  Collected  Works,"  II, 
flp.  ()  scq. 

2  "Pliäiioinciiolo^if,"  |).  4('). 

'  "( inmdliiiifn,"  §:'>!,  wiili  "F.nzyklopädie,"  I,  §§  Gl-78  "(Col- 
lided Works,"  \i).  See  ill  \\\\s  €on\\vc\'Mn  Berolzheimer,  "System," 
\ol.   I,  j)|).  W    H*;'>,  and  llic  references  there  found. 


§35]  HEGEL  AND  THE  HEGELIANS  221 

No  one  any  longer  believes  in  the  legitimacy  of  this 
dialectic  method,  and  a  harsh  judgment  might  pro- 
nounce it  self-deception  or  worse.  It  is  indeed  a  futile 
procedure;  for  in  reality,  the  dialectician  puts  into  the 
dialectic  mill  so  much  of  experience  and  of  the  material 
resulting  from  a  non-dialectical  consideration,  that  the 
desired  result  eventually  emerges.  Hegel's  dialectic 
is  the  consistent  elaboration  of  Kant's  rationalism  with 
a  Fichtean  tone;  and  it  is  easy  to  make  Hegel  respon- 
sible for  the  sins  of  others.  Yet  the  dialectic  contains 
a  profound  truth,  which  is,  however,  different  from  what 
Hegel  had  in  mind.  It  is  the  fact  that  objects  come  into 
full  consciousness  as  independent  realities  only  through 
their  opposites.  Such  conceptions  as  beauty,  bright- 
ness, greatness,  attain  a  meaning  in  the  world  of  ex- 
perience through  the  concomitant  consciousness  of  their 
opposites  —  ugliness,  dullness,  smallness.  Whoever  has 
not  experienced  sorrow  and  unhappiness  may  be  in  a 
fortunate  position,  but  the  consciousness  of  happiness 
is  not  his.  All  things  are  limited  by  their  opposites  and 
thus  come  to  consciousness.  Objects  and  their  opposites 
are  detached  and  fixed  only  in  our  conceptions.  If  we 
suppose  the  human  capacity  for  knowledge  to  disappear, 
then  all  differentiation  disappears,  and  there  remains 
chaos  and  complete  vagueness.  To  know  means  to 
differentiate.  The  world,  as  it  is  reflected  in  the  human 
mind,  is  in  fact  a  product  of  human  differentiation  — 
the  positing  of  objects  in  human  conception,  each  ob- 
ject revealing  nothing  in  itself,  and  being  crystallized 
and  unified  only  through  its  opposite.  But  the  recog- 
nition of  this  reciprocity  in  the  realm  of  concepts  is 
incapable  of  serving  for  the  construction  of  a  practical 
philosophy  ;i  it  can  lead  only  to  viewing  the  actual 
world  as  an  absolute  vagueness,  as  chaos,  as  the  undif- 

^Berolzheimer,  "System,"  Vol.  I,  pp.  222-220. 


222  CIVIC   EMANCIPATION  [Ch.  V 

ferentiated.  It  must  then  be  noted  that  in  the  Hegelian 
theory  of  knowledge  the  stages  of  evolution  do  not  con- 
stitute realities,  but  are  merely  emanations  of  the  con- 
cept of  pure  thought  or  logical  processes.  Paulsen  ^  aptly 
says  that  the  Hegelian  philosophy  is  a  "philosophy 
that  attempts  nothing  short  of  a  reconstruction  of  the 
world  of  thought.  Indeed  the  creation  finds  its  true 
consummation  only  in  such  thought;  without  it  the 
world  remained  a  mere  blind  fact,  though  in  itself  a 
rational  one.  It  finds  illumination  in  speculative  philos- 
ophy; there  it  recognizes  itself  as  what  it  is,  as  a  unified 
existent  system   of  thought," 

According  to  Hegel  the  evolution  of  the  human  mind 
shows  six  stages:  consciousness,  vself-consciousness, 
reason,  spirit,  religion,  and  absolute  knowledge.^  The 
development  of  "the  idea  of  the  free  will  existing  in  and 
for  itself,"  presents  three  stages.  In  the  first  the  will 
is  direct  or  immediate;  to  this  there  corresponds  the 
sphere  of  abstract  or  formal  law.  The  second  stage 
shows  "the  will  turned  back  into  itself,"  "as  a  subjective 
individuality  contrasted  with  tlie  universal".  Here  the 
idea  is  divided,  and  exists  in  separate  elements.  This  is 
the  sphere  of  morality.''  The  third  stage  is  the  unity 
and  truth  of  both  previous  abstract  moments, — ^  the 
realization  f)f  the  idea  of  the  good,  —  "the  idea  of 
morality  in  its  independent  general  existence,  "an  und 
für  sich."  Law,  ethics,  and  morality  are  the  three 
stages    in    tlie    develoiiment     of    the    objeclive    mind. 

'  "[iiimamicl  Kant.  St'iii  Leben  nnd  seine  I.clirc,"  second  and 
lliinl  cdii.,  Slullij;arl  1S99,  pp.  389  seq.  (I  was  not.  able  to  consult 
the  Iniirtli  edit.) 

■^  "l'liänoin(  ii()I()t;i(',"  [)]).  73  seq.;  see  also  Bernlzhcimcr,  "Sys- 
Itin,"  \'()l.   I,  J)]).   Kill  scq. 

'  In  1  lend  tile  term  "Moralilät "  is  t^iven  a  spt'ciai  mcinini;  apart 
from    ni<)iaiil\'  as   "Sit  I  iirlikcii ." 


§  35]  HEGEL  AND  THE  HEGELIANS  223 

Together  they  constitute  the  objective  mind;  in  them 
_the  mind  acliiev.es  Qbiectivitv7  The  moral  substance  — 
"Substanz,"  Hkewise  shows  three  stages:  the  natural 
spirit,  the  family;  the  civil  society,  or  spirit  in  its  dual 
existence  and  mere  appearance;  the  State,  the  complete 
unity  of  the  individual  and  the  universal.^ 

4:  Hegel's  Conception  of  the  State.  Through  the 
mediacy  of  civil  society  —  not  in  the  sociological  sense 
of  a  primary  association  between  family  and  State  ^  — 
the  State  is  shaped  to  a  career  of  noble  destiny.^  The 
State  is  the  supreme  expression  of  morality.  "It  is  the 
realization  of  the  moral  ideal,  of  the  moral  spirit,  of  the 
will,  self -revealing,  self-conscious,  efficient,  thinking  and 
knowing,  and  carrying  its  knowledge  into  action."  * 
This  abstract  form  of  expression  seems  strange  because 
it  is  phrased  in  the  language  of  the  Hegelian  philosophy; 
it  involves  a  double  meaning,  the  two  factors  of  different 
import.  Translated  from  his  language  to  the  vernacu- 
lar, Hegel's  definition  implies:  first,  that  the  State  is 
th^_com]D[ete  development  of  morality;  and  second,  that 

^  "Grundlinien,"  §  33. 

2  Hegel,  "Grundlinien,"  §  182,  p.  246:  "Civil  society  expresses 
the  difference  that  arises  between  the  family  and  the  State,  even 
though  in  the  course  of  evolution  the  resultant  becomes  the  develop- 
ment of  the  State  itself.  For  the  distinction  presupposes  the  exis- 
tence of  the  State  as  an  independent  institution.  The  creation  of 
a  civil  society  is  characteristic  of  the  modern  world  which  overcomes 
all  the  limitations  of  the  idea." 

*The  principles  of  civil  society  are  determined  by  Hegel  as  fol- 
lows ("Grundlinien,"  §  182,  p.  246):  "The  concrete  person,  who  for 
himself  is  a  particular  purpose,  an  aggregate  of  needs,  and  a  mix- 
ture of  natural  necessity  and  free  will,  is  the  sole  principle  of  civil 
society.  But  the  particular  person  is  considered  in  relation  to  others 
of  like  status,  so  that  each  becomes  valid  and  satisfied  and  his  being 
mediated  only  through  the  rest,  and  as  well,  is  realized  only  through 
the  form  of  the  universal,  which  is  the  other  principle." 

^  "Grundlinien,"  §  257,  p.  312. 


224  CIVIC  EMANCIPATION  [Ch.  V 

,  the  State  ever  meets  the  problems  of  culture  as  they  are 
present  to  the  consciousness  of  a  given  period.  Hegel 
thus  disposes  of  the  seeming  contradiction  —  applicable 
to  the  State  as  to  law  — ■  that  the  State  represents  abso- 
lute reason  in  its  supremedevelopmcntwhile the  activities 
of  the  governmental  functions  are  decidedly  varied  at 
different  times  and  stages  of  development.  The  State 
is  the  supreme  form  of  reason  or  the  rational,  while  yet 
it  is  not  something  fixed  but  ever  in  the  process  of 
formation.  This  conception  places  Hegel  in  advance 
of  Kant  and  allies  him  to  the  world  of  present  thought. 
For  Hegel  the  State-^is^-TTO^torrger  the  constitutional 
State7 '^Rechtsstaat,"  but  the  State  ready  to  accept  the 
mission  of  culture,  "Kulturstaat."  Yet  Hegel's  concep- 
tion of  the  State  cannot  be  accepted.  For,  to  begin  with, 
the  State  is  not  the  embodiment  of  morality.  Hegel's 
assumption  that  it  is  so,  recalls  the  Greek  view  of  life. 
Greek  idealism  regarded  the  State  as  an  ethical  institu- 
tion, but  the  modern  conception  is  characterized  by  its 
detachment  of  law  from  the  "ethos,"  the  moral  dispo- 
sition of  the  community,  by  the  separation  of  the  State 
from  spiritual  community.  Again,  Hegel  has  no  appre- 
ciation, indeed  no  sus])icion,  of  the  true  nature  of  the 
State  as  the  original  source  of  law,  and  thus  of  its  artificial 
legal  status.  Hegel's  philoso]ihy  of  law,  despite  the 
eccentricity  of  his  system  and  its  memifold  errors,  reveals 
the  greatness  of  the  man.  His  views  are  thoughtfully 
elaborated  and  bear  the  impress  of  his  personality.  He 
is  not  content  to  re])cat  the  views  of  others,  but  infuses 
every  detail  with  a  vital  individual  spirit,  with  a  jetlex 
of  his  own  thought. 

5:  FuNiMMicNTAi-  Licc.Ai.  Ideas:  Person,  Property, 
Injury,  and  Crime.  Hegel's  connnents  upon  the  relation 
and  (HlTc  rcnce  between  the  laws  of  nature  and  of  positive 
law  nia>-  be  cited  by  way  of  further  contributions  bear- 


§35]  HEGEL  AND  THE  HEGELIANS  225 

ing  upon  fundamental  legal  ideas. ^  The  former  are 
absolute,  and  it  is  only  our  knowledge  of  their  mode  of 
working  that  is  capable  of  extension.  Positive  laws  are 
"established,  instituted  by  man.  With  these  conscience 
may  conflict  or  accord."  ^  In  studying  the  nature  of 
wrong  Hegel  comments  upon  a  phase  but  little  regarded, 
which  he  calls  "unpremeditated  wrong,"  ^  "unbe- 
fangenes Unrecht,"  that  condition  or  action  which  is 
objectively  unwarranted,  without,  however,  involving 
blame;  an  objective  wrong  without  subjective  guilt.^ 
Of  more  importance  is  Hegel's  doctrine  of  "the  person."  ^ 
Law  transforms  men  into  persons.  The  law  does  not 
deal  with  men  as  subjects,  but  rather  the  subjects  of 
the  law  are  always  persons.  This  apt  observation 
applies  to  Roman  law.  The  owner  of  a  legal  right  is 
not  the  man  as  man,  but  the  man  as  a  member  of  the 
legal  organization- — ^  "the  persona."  Hegel's  doctrine 
of  "the  person"  is  applied  in  his  theory  of  the  State. 
It  there  leads  to  the  conception  of  the  State  as  a  person- 
ality in  the  legal  sense.  The  State  has  a  personality 
as  a  complete  concrete  realization  of  the  will,  as  the 
manifestation  of  reason  realized  in  the  will.  The 
sovereignty  therefore  belongs  to  the  State  and  not  to 
the  people.     The  personality  of  the  State  is  realized  as 

^Hegel's  view  is  set  forth  by  A.  Affolter,  "Naturgesetze  und 
Rechtsgesetze,"    Munich    1904. 

^  "Grundlinien,"  p.  8,  note. 

'  Hegel,  "Grundlinien,"  pp.  128-130.  For  this  Lasson  uses  the 
term  "Schuldloses  Unrecht,"  "blameless  wrong."  ("System  der 
Rechtsphilosophie,"  §  44.) 

* Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  pp.  119,  166, 
168. 

^Berolzheimer,  "Rechtsphil.  Studien,"  pp.  104-113.  The  fund- 
amental principle  of  law  ("Das  Rechtsgebot"),  according  to  Hegel, 
reads  ("Grundlinien,"  §  36):  "Be  a  person  and  respect  others  as 
persons." 


226  CIVIC  EMANCIPATION  [Ch.  V 

a  person  in  the  monarch.  The  State  is  an  organism; 
that  is,  an  idea  developed  to  its  differentiations.  The 
State  exists  as  a  concrete  individual  State,  derived  from 
a  particular  folk-spirit,  as  the  outcome  of  the  self- 
consciousness  of  a  people,  and  particularly  of  its  religious 
convictions.  The  State  is  "the  real  and  organic  spirit 
of  a  people"  and  is  further  extended  by  the  relation  "of 
particular  folk-spirits  to  the  higher  development  in  a 
universal  spirit  of  absolute  reason  of  which  law  is  the 
supreme  expression."  ^ 

Hegel's  doctrine  of  "the  person"  is  peculiarly  important 
in  private  law;  and  in  this  field  there  has  not  been 
accorded  to  him  an  adequate  appreciation.  His  train 
of  thought  may  be  thus  reproduced:  Through  law  a 
human  being  attains  the  dignity  of  a  person.  This 
attribute  of  a  person  is  expressed  in  property.  Property 
is  the  legally  artificial  cloak  under  whose  protection  the 
power  of  man  is  extended  through  the  State  and  law 
above  his  natural  status.  Just  as  other  cultural  factors 
show  their  beneficial  effect  by  increasing  human  effi- 
ciency, so  law  stimulates  and  increases  the  artificial 
efficiency  of  each  individual  and  of  the  community. 
"The  word  'Vermögen'  is  etymologically  related  to 
'vermögen';  that  which  one  can  do  is  his  property. 
In  the  course  of  development  there  was  derived  from 
this  general  conception  of  capacity  a  narrower  one,  and 
'vermögen,'  in  the  narrower  economic  and  legal  sense 
means  what  anyone  as  a  legal  suljject  may  do.  It 
has  thus  been  transferred  to  a  legal  economic  sense. 
In  its  nature  the  State  is  the  embodiment  of  legal  power 
internally  and  externally.  At  the  same  time  the  State 
would  be  an  em])ty  C()nce])t,  a  shadowy  essence,  were  it 
not  that  this  conce])t  of  legal  authority  is  brought  to 
exj^ression  by  investing  the  State  with  a  material  reality. 

'  "r.riiiKllinicn,"  pp.  r{12  scu. 


§  35]  HEGEL  AND  THE  HEGELIANS  227 

This  material  investiture  is  made  effective  by  property. 
The  conception  of  private  property  thus  also  confers 
legal  and  economic  power  upon  the  State;  and  in  this 
fundamental  constructive  significance,  and  in  this  alone, 
lies  the  justification  of  private  ownership  and  property."  ^ 
I  must  at  once  add  that  this  interpretation  of  the 
meaning  of  "vermögen,"  as  quoted  above,  will  in  vain 
be  sought  in  Hegel.  The  quotation,  although  taken 
from  one  of  my  own  earlier  writings,  is  substantially 
contained  in  Hegel's  view  of  the  philosophy  of  private 
ownership,  and  in  the  recognition  of  ownership  or 
property  as  representing  the  legal  economic  efficiency 
of  the  individual.  In  the  resulting  support  of  the 
State  by  the  individual,  lies  the  justification  of  ownership 
and  private  property.  The  reason  why  this  interpre- 
tation of  Hegel's  views  on  property  has  not  been  hitherto 
advanced  may  be  due  to  the  fact  that  the  recognition  of 
property  as  an  economically  efficient  factor  has  not 
hitherto  been  adequately  established.  There  may  be 
another  and  more  important  reason;  it  may  be  due  to 
the  fact  that  Hegel  does  not  speak  of  property,  "Ver- 
mögen," which  includes  both  real  rights  and  obligations, 
but  of  ownership,  "Eigentum."  Ownership  is  the  legal 
term  for  the  right  to  material  things,  and  is  thus  but  a 
sub-division  of  one's  property,  "Vermögen."  Fully  to 
appreciate  Hegel's  presentation  of  property  the  word 
"Eigentum,"  which  he  employs,  must  not  be  under- 
stood in  the  legal  sense,  but  must  be  replaced  by  the 
economic  term,  property,  "Vermögen."  -  There  will 
thus  be  introduced  a  pertinent  meaning  into  Hegel's 
exposition.  "The  free  will,  in  order  not  to  remain 
abstract,  must  proceed  to  secure  an  existence;  and  the 
perceptible  embodiment  of  such  existence  are   things; 

^  Berolzheimer,  "Das  Vermögen,"  1904,  p.  519. 

^  Berolzheimer,  "Das  Vermögen,"  pp.  440  seq.,  546  seq. 


228  CIVIC  EMANCIPATION  [Ch.  V 

that  is,  external  objects.  This  first  form  of  freedom  is 
what  we  may  call  ownership,  'Eigentum,'  the  sphere  of 
formal  and  abstract  law,  to  which  belong  equally  owner- 
ship in  its  indirect  form  of  agreement,  and  the  right  to 
regard  the  infringement  of  ownership  as  a  punishable 
crime."  ^  The  following  passage  is  apposite:  "The 
person  must  attain  an  outer  sphere  for  freedom  in  order 
to  exist  as  an  idea."^  And  later,  in  regard  to  agree- 
ment:^ "Ownership,  of  which  the  aspect  of  existence  or 
externality  is  no  longer  merely  an  object,  but  contains 
within  itself  the  factor  of  a  will,  arises  through  agree- 
ment; and  agreement  is  a  procedure  by  which  the 
contradiction  is  both  presented  and  mediated,  that  I, 
as  a  self-existent  owner,  standing  apart  from  the  wills 
of  others,  am  and  remain  such,  in  so  far  as  I  cease  to  be 
an  owner  by  making  my  will  identical  with  others." 
The  infraction  of  the  law  in  general,  and  crime  in  parti- 
cular, are  externally  something  positive,  but  are  in  them- 
selves negative.  The  inherent  negative  character  of  wrong 
appears  in  that  the  right  persists  despite  the  infringe- 
ment, and  in  that  the  infringement,  in  its  negative 
character,  is  overcome  and  removed  by  the  punishment. 
Punishment  is  thus  the  negation  of  the  negation  of 
right  —  a  just  retribution,  the  establishment  of  the 
equilibrium  ^  of  the  State  which  the  criminal  has  dis- 
turbed;  it  is  a  logical  postulate.^ 

6:  A  Critical  Verdict  ON  Hegel.  A  definitive  judg- 
ment uiK)n  Hegel's  philosophy  of  government  and  law 
is  not  summarily  to  be  reached.     It  seems  the  irony  of 

^  Hegel,  "(iriiiullinicn,"  ]>.  70. 

*  "Grundliiiiiii,"  ])|).  7S,  7S-114  (iiifliiciicc  of  Fichte). 
^  "Grundliiiiin,"  pp.    1 1  I  s('(|.,  Ill    12('). 

*Berolzheimcr,  "Die  iMilgcIluiii;  im  SlrafiL-clitc,"  p.  o'i  and  other 
places. 

'  Hegel,  "GruiidliniL'u,"  i)p.  120-147. 


§  35]  HEGEL  AND  THE  HEGELIANS  229 

fate  that  his  own  phrase  of  the  identity  of  opposites 
applies  to  Hegel  himself.  While  recognizing  his  supreme 
intuition,  his  keen  philosophic  sense,  and  his  originality 
—  which  places  him  well  above  Kant,  who  in  many  ways 
still  clings  to  the  fetters  of  the  traditional  • — ■  one  cannot 
disguise  the  fact  that  his  dialectic  method  at  times  ad- 
vances conclusions  and  opinions  that  come  close  to 
nonsense,  and  are,  at  the  least,  conspicuously  inconse- 
quential. If  Kant's  idealistic  philosophy  may  be  said 
to  have  dwelt  in  a  magic  garden,  then  Hegel's  is  sug- 
gestive of  the  intricate  paths  of  a  maze.  It  is  easy  to 
understand  why  the  estimates  of  Hegel  have  varied  from 
one  extreme  to  another,  from  fanatic  enthusiasm  to 
absolute  contempt,  and  even  to  the  consideration  of 
his  philosophy  and  dialectic  as  a  hair-splitting  topsy- 
turvydom. Recently — notably  through  the  influence  of 
Kuno  Fischer  and  Köhler — Hegel  has  again  been  recog- 
nized as  a  star  of  the  first  magnitude  in  the  philosophical 
firmament.  But  the  grounds  for  this  appreciation  are 
not  the  same  as  formerly  obtained.  The  keenness  of 
his  speculations,  the  breadth  of  his  ideas,  and  the  cogency 
of  his  dialectic  argument  and  treatment  of  the  historical 
material  as  a  whole,  were  the  qualities  of  Hegel's  philoso- 
phy that  brought  reputation  to  its  author.  His  phil- 
osophy was  admired  for  its  art,  its  deductive  perfection, 
its  ingenuity  of  construction,  and  its  proportion  of 
execution.  Today  it  is  the  baroque  style  of  his  philoso- 
phic architecture  that  repels.  It  is  the  intrinsic  value 
of  his  thought  that  forms  the  basis  of  the  modern  appre- 
ciation. When  the  massive  walls  of  the  Hegelian  struc- 
ture are  removed,  and  the  bare  skeleton,  the  iron 
framework,  stands  revealed,  —  or,  to  drop  the  figure,  the 
shrewd  observations  and  the  astute  opinions  upon  issues 
large  and  small  which  reflect  his  historical  sense,  —  it  is 
the  latter  that  represent  the  enduring  value  of  his  phil- 


230  CIVIC  EMANCIPATION  [Ch.  v 

osophy.  It  is  only  in  style  that  Hegel  is  baroque;  to  a 
generation  that  has  advanced  beyond  naturalism,  he  is 
distinctly  modern  in  content.^ 

The  evolutionary  idea,  dimly  suggested  by  Heracli- 
tus,  attained  its  renaissance  in  the  nineteenth  century; 
not  without  precedent,  it  appeared  in  a  dual  aspect. 
In  its  realistic  formulation  it  led  to  the  doctrine  of 
evolution  as  expressed  in  natural  science,  represented 
by  Goethe,  Lamarck,  Darwin,  Spencer,  and  Häckel;  its 
idealistic  formulation  appears  in  Schelling,  Hegel,  and 
Köhler.  It  is  Hegel's  greatest  merit  as  a  political 
philosopher  to  have  replaced  the  "Rechtsstaat"  by  the 
"Kulturstaat,"  to  have  accomplished  the  affiliation  of 
law  with  culture,  and  to  have  established  the  justifica- 
tion of  the  several  evolutionary  stages  of  law  and 
government. 

It  has  frequently  been  noted,  more  commonly  by 
way  of  adverse  criticism,  that  Hegel's  philosophy  of 
law  and  government  was  directed  to  the  theoretical 
justification  of  the  Prussian  State  of  his  day.  In  a 
measure  such  is  the  case.  Just  as  Rousseau  in  his  "Dis- 
cours" afforded  a  i^hilosophic  foimdation  for  the  French 
Revolution;  as  Wolff  became  the  theoretical  repre- 
sentative of  enlightened  absolutism,  and  Kant  the  apolo- 
gist of  the  State  as  a  legal  institution;  as  Fichte,  the 
statesman,  and  Schelling,  the  romanticist,  aroused  the 
German  national  si)irit;  so  Hegel's  philosophy  of  law 
sounded  the  keynote  for  the  intellectuals  of  the  rejuve- 
nated and  awakened  Prussian  State.  The  environment, 
the  s])irilual  tem])er,  from  which  Hegel's  philosophy  of 
law  emerged,  was  likewise  the  culture  to  which  the 
Prussian  Slate  owed  its  growth  and  consummation  in  the 
recognition  of  the;  State  as  the  sui)reme  representative 

'The  resurrection   <jf   Ilegel  appear^  in  such  a    contribution    as 
Köhler' s   "I'hilosophy   of   Law." 


§  35]  HEGEL  AND  THE  HEGELIANS  231 

of  moral  force  and  strength  —  the  recognition  that  the 
State  is  designed  and  called  to  fill  a  mission  of  culture, 
and  to  fill  it  in  such  manner  that  the  State  shall  not 
exist  for  the  individual,  nor  yet  the  individual  for  the 
State,  but  that  State  and  citizens  shall  enter  in  common 
the' service  of  a  definite  cultural  ideal,  whereby  the  com- 
munity and  the  members  thereof  shall  advance,  each 
according  to  his  capacity,  the  progress  of  man.  Simply 
expressed,  Hegel  conceived  the  State  as  the  bearer  of 
cultuiie,  and  thus  supplied  the  theoretical  foundation  of 
"the  "Kulturstaat,"  which  was  accepted  as  the  ideal 
of  the  newly  awakened  Prussia.^ 

The  weakness  of  Hegel's  position  is  that  attaching 
to  the  doctrine  of  universal  flux.  In  a  system  in  which 
everything  is  set  forth  as  in  course  of  evolution, 
there  are  lacking  fixed  points  of  attachment  in  the 
eternal  stream.  As  an  historian  Hegel  may  retrospec- 
tively divide  the  stream  of  phenomena  into  periods;  but 
as  a  political  philosopher  he  fails  to  find  a  basis  for 
government  and  law.  The  position  of  vantage  accru- 
ing to  the  community  and  the  individual  through  gov- 
ernment and  law,  the  vitality  of  the  law,  is  a  truth 
momentarily  revealed  in  Hegel's  philosophy  of  ownership ; 
but  no  sooner  does  it  appear  than  it  again  is  lost.  For 
this  truth  contrasts  sharply  with  Hegel's  entire  position 
in  so  far  as  his  philosophy  divests  government  and  law 
of  reality,  and  reduces  them  to  a  mere  emanation  of  an 
abstract  dialectic  movement.  As  a  legal  philosopher 
Hegel  advanced  many  significant  truths;  but  his 
abstract  train  of  thought  brought  him,  in  many  respects, 
in  direct  contradiction  with  the  facts  of  the  law  and  its 
evolution.  However,  taken  all  in  all,  Hegel  was  one 
of  the  greatest  men  that  the  philosophy  of  any  age  pro- 

*  Compare  with  former  divisions  of  this  section. 


232  CIVIC  EMANCIPATION  [Ch.  V 

duced  —  great   in   his   achievements,    and   great   in   his 
defects. 

7:  The  Hegelians.  Of  the  three  groups  into  which 
we  may  divide  the  Hegehans,  we  mention  first  the  scien- 
tific group.  It  was  their  purpose  to  develop  the  system 
which  Hegel  had  outhned  and  which  was  indeed  but  the 
framework  of  a  comprehensive  philosophical  construc- 
tion. Foremost  in  this  group  are  Gans,  and  Lassalle, 
the  author  of  "Das  System  der  Erworbenen  Rechte."^ 
It  may  be  noted  that  Hegel's  philosophy  of  law  bears  the 
title  of  "Outlines";  Lassalle  looked  upon  it  as  such, 
and  regarded  the  mission  of  the  younger  Hegelians  to  be 
"to  carry  the  project  to  its  completion,  to  prepare  a 
philosophy  of  private  law,  and  to  trace  the  development 
of  the  actual  institutions  connected  therewith."  ^  Gans^ 
(1798-1839)  endeavored  to  carry  forward  Hegel's  phil- 
osophy of  law.  He  undertook  a  comprehensive  work, 
"Das  Römische  Erbrecht,"  in  which  he  traced  the  histor- 
ical development  of  the  law  of  inheritance.  In  it  the 
wide  learning  of  its  author,  and  his  complete  absorption 
and  comprehension  of  the  intricate  system  of  Hegel's 

1  "Das  System  der  Erworbenen  Rechte.  Eine  Versöhnung  des  Posi- 
tiven Rechts  und  der  Rechtsphilosophie."  Part  I:  "Die  Theorie 
der  Erworbenen  Rechte  und  die  Kollision  der  Gesetze,  unter  beson- 
derer Berüclcsichtigung  des  Römischen,  Französischen  und  Preus- 
sischen  Rechts  dargestellt."  Part  II,  Divisions  1  and  2.  "Das 
Wesen  des  Römischen  und  Germanischen  Erbrechts  in  historisch- 
philosophischer Entwickelung.  Unter  besonderer  Berücksichtigung 
des  Römischen,  Französischen  und  Prcussischen  Rechts  dargestellt." 
(Ferdinand  Lassalle," CoW^ctod  Works."  Only  edition  j)ub!ished  by 
Erich  Blum,  4,  5  vols.,  Leii)zig  1901.)     I,  preface,  p.  xi. 

^  "Das  System  der  Erworbenen  Rechte," 

^ liduard  Gans,  "Das  Römische  Erbrecht  in  seiner  Stellung  zu 
vor-  und  nachrömischem.  P2ine  Abhandlung  der  llniversalrechts- 
geschichte,"  Vol.  I,  Berlin  1S24,  "Das  Erbrecht  in  weltgeschicht- 
licher Entwickrliini^.  Eine  Abhandlung  der  Unixcrsalrechtsge- 
s(  liichle,"   Vol.   il,    l'.ciiin    \S,'2't.      I'our  volumes  ha\t' ap])eared. 


§  36]  RECENT  SYSTEMS  233 

philosophy,  appears.  It  had,  however,  no  influence  upon 
the  development  of  legal  philosophy.  Lassalle's  work^ 
attracted  considerable  attention,  by  reason  not  of 
its  philosophical  but  of  its  political  importance,  due  to 
its  excursions  into  politics. 

Although  Stahl  conducted  a  controversy  against 
Hegel's  pantheism,  his  philosophy  of  law  and  govern- 
ment may  be  regarded  as  a  theological  variation  of 
Hegel's  system,  reflecting  also  the  influence  of  Schelling. 
(For  Stahl's  position  consult  §  36.) 

The  economic  philosophy  of  Karl  Marx,  and  that  of 
his  pupil,  Lassalle,  may  be  regarded  as  the  materialistic 
aspect  of  Hegel's  philosophy,  taking  its  mode  of  demon- 
stration from  Hegel's  dialectic  method.^ 

§  36.  Recent  Systems  of  Legal  Philosophy.  1 :  Stahl. 
The  majority  of  orthodox  legal  philosophers  at- 
tempted to  show  that  a  philosophy  of  law  based  upon 
ecclesiastical  foundations  was  rational,  and  thus  freed 
it  from  its  religious  forms  and  limitations.  By  a  con- 
verse procedure  J.  Stahl^  (1802-1861)  divested  the 
philosophy  of  law  and  government  of  its  rationalistic 
foundations  and  reconstructed  it  upon  a  Protestant 
Christian  basis.  Whether  Stahl  has  any  claim  to  recog- 
nition as  a  scientific  contributor  to  the  philosophy  of 
government  and  law,  or  whether  he  is  to  be  dismissed 
as  a  partisan,  is  an  open  question.     It  is  but  fair  that 

^Lassalle,  "System,"  I,  pp.  (157)  164  seq.,  180-186,  279  seq., 
361-386;   Part  II,  Division  2,  pp.  593-596. 

^  See  below,  §  38. 

'"Die  Philosophie  des  Rechts"  Vol.  1  (third  edit.,  Heidelberg 
1856).  "Geschichte  der  Rechtsphilosophie,"  2  vols.  "Rechts- und 
Staatslehre  auf  der  Grundlage  Christlicher  Weltanschauung,"  Part  1, 
containing  the  general  laws  and  private  law  (third  edit.,  1854); 
Part  2,  "Die  Staatslehre  und  die  Prinzipien  des  Staatsrechts"  (third 
edit.,  1856).  Vol.  2,  Part  1,  alone  was  accessible  to  me  in  the  third 
edit.,  for  the  rest  I  cite  from  the  second  edition. 


234  CIVIC  EMANCIPATION  [Ch.  V 

he  be  judged  by  the  mtellectual  standards  of  his  day. 
Rationalism,  though  not  superseded,  was  on  the  decHne. 
From  the  days  of  Descartes  to' those  of  the  three  great 
luminaries,  Kant,  Fichte,  and  Hegel,  the  mainstay  of 
German  philosophy  had  been  the  position  that  reason, 
or  experienceless  thought,  yields  genuine  truth  and  philo- 
sophic knowledge.  English  empiricism  was  unable  to 
assert  itself,  owing  partly  to  its  tendency  to  dissipate 
into  a  shallow  utilitarianism.  Though  'n  his  first 
period  Schelling  was  bound  by  the  rationalism  and 
idealism  of  Kant  and  Fichte,  it  was  through  his  influence 
that  rationalism  began  to  decline;  and  Hegel  himself, 
the  greatest  of  rationalists,  who  traced  dialectically 
the  growth  of  pure  subjectless  and  objectless  thought 
of  a  de-personalized  agent,  through  his  recognition  of 
evolutionary  doctrines,  helped  to  dig  the  grave  of  ration- 
alism. Stahl  carried  forward  the  program  outlined  by 
Schelling  and  Hegel  for  a  withdrawal  from  the  philosophy 
of  reason.  As  an  opponent  of  rationalism  he  sought  a 
difi^erent  basis  for  his  philosophy  of  law  and  govern- 
ment. Had  Stahl  lived  a  few  decades  later,  it  is  probable 
that  he  would  have  followed  the  prevalent  tendency  and 
would  have  become  an  empiricist,  a  sensationalist  upon  an 
evolutionary  basis.  But  Stahl  lived  in  a  period  in  which 
the  only  scientifically  approved  philosophical  method 
was  that  of  a  pure  deductive  derivation  of  principles  as 
conclusions  of  a  supreme,  unquestioned  major  premise. 
As  Stahl  abandoned  the  dogma  of  reason,  he  had  no 
choice  but  to  accept  the  dogma  of  faith;  his  philoso- 
phy (A  law  re]:)resents  the  Protestant  counterpart  of 
the  Catholic  philosophy  of  Schelling's  later  period. 

An  imprcjudiccd  view  of  the  great  rationalistic  sys- 
tems of  Kant,  l-'iclite,  and  Hegel  discloses  that  in  fact 
em])iri(al  tyi)es  of  knowledge  were  forced  into  the  ration- 
alistic  iiioiilcj.     Had   those    great    minds  not    first   had 


§  36]  RECENT  SYSTEMS  235 

recourse  to  experience,  and  transferred  the  material 
thus  inductively  obtained  to  deductive  premises,  they 
would  have  been  blocked  at  the  outset,  and  would  have 
failed  to  find  a  transition  from  ])ure  reason  to  the  realities 
of  law  and  government.  Critical  idealism  may  be  de- 
scribed as  an  ambitious  philosoj^hical  edifice  set  with 
noble  columns,  which,  however,  carry  no  burden;  indeed 
they  have  only  the  form  of  supports,  while  actually 
ornaments  suggestive  of  the  vagaries  of  the  baroque 
period.  Stahl's  theological  deductions  likewise  carry 
no  burden;  the  true  supports  of  his  view  were  supplied 
by  Hegel  and  Schelling. 

Schelling  took  over  pantheism  from  Spinoza;  but 
instead  of  the  dogmatic  pantheism  of  the  latter,  he 
advanced  a  critical  pantheism.  Spinoza's  pantheism 
is  thorough-going;  to  him  the  world  is  the  emanation  and 
consists  of  universal  substance.  Schelling's  pantheism 
went  through  the  stages  of  the  critical  idealism  of  Kant 
and  Fichte,  and  assumed  a  critical  form.  The  world, 
or  the  absolute,  became  the  mere  accident  of  a  rational 
ego.  The  philosophy  of  Spinoza  and  that  of  Schelling 
favored  the  doctrine  of  identity;  that  is,  they  assumed 
the  identity  or  unity  of  subject  and  object.  But  Spinoza 
placed  such  unity  in  the  absolute  object,  while  Schelling 
placed  it  in  the  absolute  subject.  Stahl  once  more 
endowed  pantheism  with  a  personal  God,  and  yet  occa- 
sionally fell  back  upon  a  rationalistic  basis.  For  Stahl 
reason,  though  not  the  source,  is  yet  the  means  of 
recognizing  justice;  accordingly,  the  material  content 
of  law   reaches  human  consciousness  ^   through  reason. 

Law  and  custom,  according  to  Stahl,  are  derived  from 
the  will  of  God.  Ethics  is  objective  or  communal  cus- 
tom, "ethos,"  in  so  far  as  the  divine  design  applies  to 

iVol.  11,  Part  1,  pp.  XVIII-XXV,  7-69,  233-238  (opposed  to 
this,  p.  241). 


236  CIVIC  EMANCIPATION  [Ch.  V 

the  human  race  as  a  whole;  ethics  is  morality  or  sub- 
jective custom  ("ethos")  in  so  far  as  the  individual  may 
be  said  to  be  formed  in  the  image  of  God.^  This  dual 
aspect  of  the  "ethos"  reflects  the  position  of  Greek 
national  ethics. 

The  interest  of  the  maintenance  of  the  objective 
existence  of  the  moral  world  requires  an  external  and 
enforcing  temporal  power,  which  is  the  law- — a.  law 
enforced  against  all  opposition,  "The  divine  order  as 
applied  to  the  human  race  must  mainta'n  human  society 
through  the  human  order  which  it  establishes,  and  which 
imposes  its  authority  upon  all  individuals;  and  such 
order  is  the  law."  The  law  becomes  realized  in  the 
State ;^  it  arises  in  the  consciousness  of  the  people,*  but 
in  the  last  analysis  "it  is  the  power  of  the  divine  order 
which  creates  law  and  endows  it  with  its  dignity."^ 
"Criminal  law  is  a  retributive  justice,  and  is  designed  to 
establish  the  realm  or  the  glory  of  the  moral  power 
through  the  destruction  or  suffering  of  those  who 
op]:)Ose  it."^ 

While  private  law  is  based  upon  the  idea  of  personality, 
public  law  is  based  upon  the  idea  of  a  moral  and  intel- 
lectual realm.  The  idea  of  such  a  moral  realm  is  the 
supreme  ethical  conception,  and  pervades  every  relation 
of  human  condilion;  it  is  its  "universal  and  absolute 
l)urpose,"  "tcAos."  Its  i)erfect  realization  lies,  according 
to  the  Christian  religion,  in  the  hereafter,  in  the  king- 

iVoI.  II,  Part   1,  pp.  70  see].,  part Iiularly  70-79. 

2  Vol.  II,  i'ati   I,  p|i.  101  si<i.,  n»2. 

3  Vol.   II,  i'art    1,  p.  210. 
n'ol.   11,    Part    1,   pp.  2:«  2:W. 
'Vol.    II,    I'ai-I    1,  1).   211. 

«Vol.  II,  I'art  1,  ]..  Kiri.  The  ri.ulit  of  the  Stato  to  punish  is  but 
objecti\f,  just  as  tin-  moral  (loiniiiioii  of  the  Stale  is  in  general  but 
object  i\c. 


§36]  RECENT  SYSTEMS  237 

dorn  of  God.  But  even  upon  earth  the  moral  world  is 
a  moral  realm;  it  but  lacks  a  visible  outward  form.^ 

The  supreme  institution  of  public  law,  its  institution 
par  excellence,  is  the  State.  "The  State  is  the  perfect 
moral  intellectual  realm  which  men  should  establish 
upon  earth."  It  is  based  upon  the  common  character 
of  the  people,  and  not  upon  that  of  the  individual.  The 
State  must  be  legally  regulated,  but  not  restricted  to 
the  function  of  the  law;  it  must  become  a  moral  com- 
monwealth. The  State  is  accordingly  a  "realm  of  ideas 
and  intelligent  purposes,  realized  and  to  be  realized, 
established  in  the  moral  order  of  the  world  of  which  men 
are  the  self-appointed  servants."  The  consequence  of 
this  conception  of  the  State  as  a  moral  intellectual 
realm  is  to  make  its  chief  purpose  the  perfection  of 
human  communal  life,  and  pursuant  thereto,  the  free- 
dom and  right  of  each  individual.  The  efficiency  of 
the  State  extends  to  all  parts  of  the  common  life,  which 
reduces  to  the  view  that  the  State  must  assume  a  mis- 
sion of  culture. 

From  the  nature  of  the  State  as  a  moral  realm  it  fol- 
lows that  it  must  exercise  a  moral  authority  over  the 
people  and  "must  become  conscious  of  itself  and  of  its 
power  as  a  personal  force ;  such  is  the  purpose  ("teAos")  of 
the  temporal  kingdom.  It  is  established  in  order  that 
there  shall  be  dominion  over  men,  personal,  consistent, 
self-sustained,  not  of  human  origin,  worthy,  authorita- 
tive, regulative,  sacred,  awe-inspiring.  The  dominion 
of  the  State,  and  thus  the  State  itself,  becomes  personal 
in  its  king."  In  an  hereditary  monarchy  the  esteem  of 
the  ruler  rests  "not  alone  upon  a  general  command  and 
decree  of  God,  as  is  true  of  all  supremacy,  but  at  the 
same  time  upon  a  very  si)ecial  divine  provision.     This  is 

1  Vol.  II,  Part  1  (secor::  edit.,  1846),  pp.  l.seq.;  pp.  12,  102-105, 
106-109,   112-123,  208  seq. 


238  CIVIC  EMANCIPATION  [Ch.  V 

the  principle  of  legitimacy  which  is  peculiar  to  the 
hereditary  monarchy."^  The  nature  of  a  kingdom 
involves  the  primacy  and  independence  of  authority, 
but  docs  not  involve  the  absoluteness  thereof;  such 
would  be  against  the  order  of  nature  and  against  the 
inviolability  of  the  kingdom.  The  sovereignty  of  the 
monarch  is  co-ordinate  with  that  of  the  constitution, 
just  as  the  supremacy  of  the  people  is  co-ordinate  with 
that  of  the  estates.  The  constitution  must  not  be 
ooked  upon  as  the  source  of  sanctity,  but  only  as  pro- 
viding "the  legal  and  moral  ties  which  form  its  content." 
The  principle  of  representation  leads  to  the  institution 
of  representatives  as  against  the  estates,  by  virtue  of 
which  the  representatives  are  not  chosen  from  among 
special  classes,  but  from  the  people,  and  are  called  to 
represent  not  the  interests  of  the  estates,  but  the  general 
interests  of  the  people.^  It  is  upon  these  three  prin- 
ciples^— -that  of  legitimacy,  that  of  the  constitution, 
and  that  of  representation  ■ — •  that  Stahl  founds  the  Chris- 
tian State.  His  position  may  be  said  to  form  the  theo- 
retical basis  of  the  conservative  party  in  Prussia. 

2:  Trendelenburg.  Adolf  Trendelenburg^  (1802- 
1872)    proposes  to  determine    the    underlying    idea   of 

1  Vol.  II,  Part  2,  pp.  219,  220:  "The  divine  right  and  legitimacy 
are  thus  diverse  but  related  conceptions;  the  former  implies  that 
the  authority  by  virtue  of  which  the  king  rules  is  of  divine  origin, 
and  the  latter  that  his  accession  to  the  throne  is  likewise  divine. 
They  form  the  Christian  principle  of  the  State." 

2  Vol.  II,  Part  2,  pp.  221  seq.;  241,  23S-247;   244;   814-321. 

'"Naturrecht  auf  dem  (irumle  der  lüliik,"  second  edit.,^  Leip- 
zig ]S()S.  Lasson,  "System  der  Rechtspliilosojjhie,"  Herlin  and 
Leipzig  1SS2  (p.  lOS),  thus  comments:  "Trendclenhurg  attempts 
to  derive  his  position  from  Aristotle,  i1iciiil;1i  imi  al\\a\s  \-ery  clearly; 
and  at  ihe  same  lime  takes  account  in  part  ot  tlie  notable  achieve- 
mriits  of  modern  .science;  but  despite  many  suggestive  comments, 
lie  does  not  attain  to  a  clear  ])resenlation  of  principles." 


§36]  RECENT  SYSTEMS  239 

the  law;  by  the  idea  he  means  "the  conception  in  which 
is  contained  the  final  determination  of  the  inner  pur- 
pose." In  agreement  with  Plato  and  Aristotle,  and 
in  contrast  to  the  "modern  separation  of  the  juridical 
and  ethical,  of  the  legal  and  moral,"  Trendelenburg 
reaches  the  position  that  "the  conception  of  law  stands 
in  an  essential  and  intimate  relation  to  the  content  of 
morality,"  Following  Plato  and  Aristotle,  he  further 
determines  the  idea  of  ethics  as  the  fulfillment  of  the 
idea  of  human  nature,  and  finds  the  ethical  problem  in 
"the  realization  of  man  as  man."  ^  This  idea  is  to  be 
realized  only  in  the  community.  "The  strengthening 
of  individuals  and  their  affiliation  as  a  whole"  proceed 
hand  in  hand  as  the  law  of  every  ethical  community. 
"The  realization  of  the  ideal  in  the  communal  man  and 
in  the  individual"  becomes  the  ethical  principle.  Through 
the  association  of  duties  and  ethical  privileges,  as  also 
of  duty  and  law,  Trendelenburg  reaches  the  following 
conception  of  law:  "The  law  in  the  moral  community 
is  the  conception  of  such  universal  limitations  of  actions 
resulting  in  the  maintenance  and  furtherance  of  the 
ethical  whole  and  its  parts.  The  ethics  of  an  immanent 
teleology  yields  this  concept  of  law  and  no  other."  ^ 

Trendelenburg  proceeds  to  consider  the  physical  aspect 
of  law,  that  is,  its  power  of  enforcement  and  its  logic 
or  method.^  He  continues  with  an  "outline  of  legal 
relations  on  the  principle,"  of  a  deductive  construction 
of  the  entire  field  of  law  in  the  spirit  of  a  teleological 
ethics.     His  view  of  the  State  is  thus  given:  "I  conceive 

^  "Naturrccht,"  pp.  6,  22,  94  seq.  "Construed  in  a  most  gen- 
eral sense,  ethics  pertains  to  the  larger  domain,  and  law  is  derived 
from  it." 

2  "Naturrecht,"  pp.  41  seq.,  45,  48-70,  71-100,  123-160;  histori- 
cal, pp. 100-118. 

'For  the  logical  aspect  in  the  origin  of  law  see  "Naturrecht," 
pp.  160-173;   and  for  the  application  of  the  law,  pp.  173-191. 


240  CIVIC  EMANCIPATION  [Ch.  V 

of  the  State  as  a  whole,  which  in  turn  falls  into  special 
divisions,  and  its  distinctive  trait  is  that  of  exercising 
supreme  legislation  from  within  and  independence 
from  without,  thus  protecting  right  by  might."  The 
idea  of  the  State  is  "to  realize  universal  man  in  the 
individual  form  of  the  people."  The  problem  of  the 
State  is  "ethically  determined  by  the  welfare  of 
the  parts  through  the  whole  and  of  the  whole  through 
the  parts."  It  is  therefore  "the  design  of  the  State  that 
man  in  the  State,  and  man  in  the  parts  thereof,  shall 
ever  remain  or  become  human."  "It  is  therefore  the 
object  of  all  governmental  regulation  to  embody  a 
mutual  relation  of  the  parts  to  the  whole,  and  the 
closest  and  most  favorable  unity  of  disposition,  insight, 
and  authority  of  which  the  actual  conditions  permit."  * 

3:  Krause.  Karl  Chr.  Fr.  Krause  ^  (1781-1832)  is 
associated  with  the  transition  from  the  position  of 
natural  law  to  the  modern  philosophical  view  of  govern- 
ment and  law.^  He  proceeds  deductively,  deriving 
them  from  "pure  reason."  While  his  point  of  view  is 
fundamentally  that  of  the  adherents  of  "natural  law," 
he  recognizes  the  historical  development  in  legal 
jihilosophy. 

In  developing  his  i)ractical  philosophy,  Krause  avoids 

I  "Nalurrccht,"  pp.  192  sr<i.,   325  seq.,  348,  481-485. 

^  Krause,  "(iruiullagc  tics  Natiirrechts,  oder  Philosophischer 
Grunririss  des  Ideals  des  Rechts,"  Part  I,  Jena  and  Leii)/ij;  1803. 
Mollat  edited  a  second  edition  of  Parts  I  and  2  vnew  material)  from 
the  i)osthumoiis  manuscript.,  Leipzig  1890  I  cite  from  this  edition. 
Krause,  "Das  Urbild  der  Menschheit,"  Dresden  1811.  "Ahriss 
des  Systems  der  l'hilosophic  des  Rechtes  oder  des  Natiirrechtcs," 
('.öttingen  1828.  "Lehensichre  oder  Philosophie  der  Geschichte  zur 
Begründung  der  Lel)cnskun.stwis.senschaft."  Vorlesungen  (at  the 
University  of  Götlingcn,  1828-1820),  first  edit.,  1843,  Karl  Hermann 
V.  Lconhardi,  second  edit.,  P.  llohlfeld  and  August  Wünsche,  Leipzig 
1904. 

'  "Ahriss  «les  Systems,  ])p.   I   setp,  8. 


§36]  RECENT  SYSTEMS  241 

the  danger  attaching  to  a  consistent  pantheism,  namely, 
the  non-recognition  of  the  personality  of  the  individual 
man.  In  Spinoza's  philosophy,  God  alone  is  substance, 
and  all  phenomena  are  attributes  of  substance.  Like 
Spinoza,  Krause  assumes  an  all-pervasive  omnipresent 
substance  which  he  calls  being — "Wesen";  the  indi- 
vidual phenomena  and  the  individuals,  however,  are 
not  mere  attributes,  but  likewise  share  in  this  quality 
of  being;  they  are  beings,  and  God  is  the  original 
Being — "Urwesen,"  Krause  calls  this  philosophical 
conception  Panentheism,  the  doctrine  of  all  in  God. 
It  differs  from  the  Jewish-Christian  position  only  in  the 
pantheistic  conception  of  the  divine  being.  Krause's 
philosophy  forms  an  advance  upon  Spinoza,  a  position 
the  more  readily  attainable  through  the  reconstruction 
of  Spinoza's  pantheism  in  a  subjective  form  in  Schelling's 
philosophy  of  identity;  it  there  became  a  critical  pan- 
theism operative  in  the  intellectual  subjective  world. 
The  later  development  of  his  doctrine  likewise  shows 
the  influence  of  Spinoza.  Spinoza  came  to  the  conclu- 
sion that  whatever  occurs  is  fundamentally  a  natural 
process,  and  that  accordingly  all  human  action  is  right 
because  it  is  a  constituent  part  thereof.  Wrong  would 
be  what  none  would  attain  and  none  desire.  The  practi- 
cal untenability  of  this  conclusion  leads  Spinoza  to  a 
breach  with  his  own  system,  and  to  an  afiiliation  with  the 
utilitarianism  of  Hobbes.  Reflecting  the  influence  of 
the  Stoics,  and  likewise  of  Hegel,  Krause  approaches  the 
problem  by  assuming  that  every  individual  has  a  destiny, 
and  that  it  is  the  purpose  of  the  individual,  as  of  the 
community,  to  attempt  to  fulfill  such  mission,  to  assume 
a  place  in  the  constitution  of  the  world,  and  to  assert 
it.^     Every  individual  is  thus  an  infinite  problem    for 

^  "Grundlage  des  Naturrechts,"!,  pp.  23-34,  with  the  note    on 
p.  21.     "Abriss  des  Systems,"  pp.  12^2. 


242  CIVIC  EMANCIPATION  [Cii.  V 

knowledge  as  for  conduct.  The  individual  cannot  fully 
attain  his  destiny,  but  must  strive  for  it  as  an  ideal. 
This  ideal  is  to  recognize  the  law  of  the  world  and  to 
enforce  it.  The  criterion,  the  medium  of  knowledge, 
by  which  the  ind  vidual  is  put  into  accord  with  his 
destiny,  is  conscience.  The  voice  of  conscience  is 
revealed  as  "the  longing  of  love."  Love  is  conditioned 
by  the  knowledge  of  the  human  value  of  others.  Love 
leads  to  the  recognition  of  other  individualities,  and 
elevates  man  above  extreme  self-assertion.^  The  nature 
of  God  is  revealed  as  the  bounty  of  God.  In  His  end- 
less bounty  lies  "the  one  good,  the  one  highest  posses- 
sion." The  realization  of  this  good  is  therefore  "the 
one  law  of  life  of  every  finite  rational  being  —  the 
destiny  of  life."  ^ 

Inhis  "Grundlagedes  Naturrechts,"  Krause  approaches 
the  problem  of  law  essentially  upon  the  position  of 
Mchte.  Law  is  a  postulate  of  reason,  and  thus  "refers 
to  the  establishment  of  the  external  conditions  of  reason 
which  exist,  and  wh.Ich  should  be  maintained  independ- 
ently of  tlie  freedom  of  the  will  and  of  natural  forces." 
"The  law  thus  seeks  to  make  freedom  a  natural  force 
and  issue,  without,  however,  destroying  such  freedom." 
There  are  as  many  types  of  rigiits  as  there  are  ideals 
of  reason;  a  right  to  wisdom,  religion,  love,  art,  and, 
as  a  means  of  attaining  a  rational  ideal,  "a  right  to 
the  maintenance  of  a  bodily  ])ersonalit>'  and  to  the 
inherent  conce])tion  of  earthly  iililiu."  r\u-ther- 
more,  "as  law  is  to  be  indei)cn(lent  of  the  bad  or  good 
intent,  there  is  also  the  riglit  of  coercion,"  and  for  the 
enforcement  of  authority,   a  riglit  of  ])unishment,   and 

'  "(jriindlage  des  Natiirrcchts,"  I,  pp.  84-;}l).  "Das  Urbild  der 
Mensrhhcil,"  pp.  1()0-12().  "Aliriss  dos  Systems,  "  pp.  61-03. 
"I.cljciislclirc,  iip.  *M)  lis. 

^  "Abriss  des  Syslein--,"   pp.   !5(»  se(|. 


§36]  RECENT  SYSTEMS  243 

consequently,  "the  right  of  supervision  and  correction 
of  all  indi\'iduals."  In  principle  all  enjoy  the  same  legal 
rights.  Law  and  morality  are  correlated  and  directed 
to  the  same  end.    Law  is  "a  condition  of  morality."  ^ 

In  his  "Abriss  des  Systems  der  Philosoplde  des  Rechts," 
Krause  describes  law  as  a  definite  and  necessary  rela- 
tion of  life,  which  must  and  should  be  established  through 
free  will  and  action  as  a  definite  possession  and  a  definite 
good.  Consequently  "the  one  law  of  morality  contains 
within  itself  the  definite  law  to  establish  that  relation 
to  life  which  is  right."  Here  law  appears  as  a  subordi- 
nate content  of  the  moral  law.  The  law  is  accordingly 
"an  organic  whole,  a  structure  or  organism  of  a  timeless 
condition  of  the  life  of  the  absolute  reason;  or  the  abso- 
lute limitation  of  reason."  Krause's  term,  "timeless," 
in  reality  implies  the  o]:)posite  of  its  literal  meaning. 
Timeless  means  unlimited  in  time,  that  is,  "in  regard 
to  time,  quite  free." 

"Humanity,  in  so  far  as  it  realizes,  lives,  or  individ- 
ually establishes  the  law,  becomes  the  legally  regulated 
State  of  humanity,  'Menschheit-Rechtsstaat;'  or  the 
State  of  humanity,  'der  Menschheitsstaat;'  or  simply 
the  State  without  further  connotation."  ^  Krause  looks 
upon  the  State,  as  upon  law,  as  an  organism.  This  con- 
ception, which  he  derived  from  Schelling,  he  develops, 
particularly   in   his   "Urbild  der    Menschheit"^   (1811), 

^  "Grundlage  des  Naturrechts,"!,  pp.  43,  44-48. 

*  "Abriss  des  Systems,"  pp.  5,  8,  46  seq.,   154-177,  177  seq. 

3  Pp.  99-100,  295-304,  &  327  seq.  "Independence  and  harmoni- 
ous interaction  form  the  fundamental  principles  of  the  structure 
of  the  world,  of  life  and  beauty."  ("Das  Urbild  der  Menschheit," 
p.  90):  "Accordingly  the  relation  in  which  all  creatures  are  placed 
with  one  another  must  be  so  conditioned  that  all  participating  in 
the  relation  may  yet  persist  therein  with  the  retention  of  their 
peculiar  nature;  and  that  in  and  through  such  relation  the  har- 
mony, for  the  sake  of  which  the  relation  is  constituted,  is  maintained 


244  CIVIC   EMANCIPATION  [Ch.  V 

and  in  his  biological  work,  "Lebenslehre."  ^  In  the  latter 
he  reaches  a  pertinent  and  clear  conception  of  the  nature 
of  law,  namely,  that  the  norm  of  primary  assent  or 
authorization  has  but  secondary  application  as  a  limit- 
ing norm  for  human  action. ^ 

The  "Naturrecht"  ^  of  Ahrens,  published  simultane- 
ously in  German  and  French,  incorporated  Krause's 
philosophy  of  law,  elaborated  and  improved  it,  and  gained 
for  it  a  wider  circle  of  readers.  Krause  failed  to  gain 
this  popularity  because  of  his  peculiar  terminology  which 
made  the  approach  to  his  philosophy  difficult,  and  per- 
haps also  because  of  the  unjust  fate  by  virtue  of  which 
the  discovery  of  a  new  truth  seems  commonly  to  be 
credited,  not  to  the  discoverer,  but  to  his  successor.  In 
addition  to  Ahrens,  Röder  is  to  be  mentioned  as  a 
disciple   of    Krause. 

in  conformity  with  the  peculiar  nature  of  the  participants  and  of 
the  eternal  laws  of  the  world.  In  every  such  relation  all  the  partic- 
ipants therein  must  prosper  and  flourish  each  in  itself  and  all  in 
harmony  furthered  by  God.  As  the  harmony  of  all  creatures  of  the 
world  is  one,  so  also  must  all  the  relations  thereof  and  the  several 
resultant  individual  harmonics  he  concordant  within  the  one  great 
harmony  of  universal  life  in  God."  ("Das  Urbild  der  Menschheit," 
p.  91.) 

^  "Lebenslehre,"  j^p.  S2  90,  upon  tlie  organic  nature  of  law.  (p. 
85):  "The  law  itself  is  one,  the  one  temiiorally  free  condition  of 
the  unified  life  of  God."  The  organic  nature  of  the  State  is  discussed 
on  pp.   lS.'i  2Ki. 

^  "Lebenslelire,"   j)p.    1S9   seq. 

'  "Naturrecht  oder  Philosophie  des  Rechts  und  des  Staates.  Auf 
dem  ( irund  desetliisclien  Zusammendusses  von  Recht  und  Kultur," 
2  vols.,  sixth  edit.,  X'iciiiia  ISTO  IS71  (the  last  edition  is  in  Ger- 
man). "Cours  de  Droit  Naturel  ou  di-  riiilosopliiedu  droit, ""2  vols, 
eighth  edit.,  Leii)zig,  reissued  after  tlie  drath  of  tlie  autlior  upon 
the  ba.sis  of  the  sixth  edition,  but  thoroughly  revised  and  supple- 
mented by  the  theory  of  j)uliiic  law  and  of  international  law.  In 
the  Trench  edition  the  historical  ])ortion  up  to  the  close  of  the 
Middle  Ages  has  lucn  oniilled. 


§3G]  RECENT  SYSTEMS  245 

4:  Ahrens.  Following  the  example  of  Plato  and  Cic- 
ero, Ahrens  (1808-1874)  derived  law  from  the  inner 
nature  of  man;  for  law  belongs  to  those  ideas  or  con- 
ceptions of  the  human  consciousness  that  involve 
obligation,  and  thus  could  not  have  been  derived  from 
experience.  The  law  becomes  operative  in  consciousness 
as  a  guiding  principle«  in  accord  with  which  one  may 
critically  judge  the  existing  conditions  and  seek  their 
improvement.  The  idea  of  the  good,  the  moral,  and 
the  just,  constitute  the  content  of  the  common  moral 
law.  The  idea  of  good  is  the  most  general,  and  comprises 
that  of  the  moral  and  the  just.  For  everything  is  good 
"which  is  in  accord  with  the  rational  nature  of  man  and 
his  perfection,  and  thus  is  worthy  to  be  striven  for. 
Morality  and  law  are  rooted  in  the  nature  of  man ;  they 
are  worthy  to  be  striven  for,  and  form  the  essential 
values  of  human  life."  Morality  and  law  differ  in  that 
morality  refers  to  the  motives  of  actions,  and  law  to  the 
actions  themselves,  to  the  objective  relations  of  life, 
which  are  for  the  most  part  property  relations.  Accord- 
ingly law  is  a  "norm  which  regulates  the  use  of  freedom 
in  accordance  with  the  relations  of  human  life  and 
property." 

The  ciuality  that  elevates  man  above  other  beings 
is  personality.  Man  alone  is  a  person;  and  the  cri- 
terion of  personality  is  reason.  It  is  through  reason  that 
the  mind  recognizes  laws,  and  that  thinking,  feeling, 
and  willing  are  elevated  to  the  realm  of  the  absolute, 
and  the  will  becomes  free  will.  Reason  is  the  capacity 
of  indefinite  improvement.  "Through  the  infinite  power 
and  disposition  of  God,  all  men  are  equal.  Every  man 
by  possibility  of  endowment  is  humanity.  Every  man 
should  therefore  attempt  to  bring  to  ever  more  complete 
realization  the  idea  and  the  ideal  of  humanity."  Krause 
makes    the   good  ("Das  Gute")  equal  to  goods    ("Das 


246  CIVIC   EMANCIPATION  [Ch.  V 

Gut");  similarly  Ahrens  makes  "Gut"  (possession) 
"everything  essential  to  man  and  worthy  of  human 
effort — everything  that  is  in  accord  with  true  human 
needs  —  that  is  serviceable  to  the  effort  for  perfection." 
Ethics  is  the  science  of  that  which  is  good  and  of 
its  realization  through  the  free  will.  It  is  divided 
into  the  doctrine  of  values  ("Güter"),  and  its  two  off- 
shoots, morality  and  law.  The  good  or  the  supreme 
good  is  the  complete  development  of  the  divine  in  human 
nature  in  every  direction  in  which  life  may  contribute  to 
the  kingdom  of  God;  that  is,  to  a  kingdom  of  all  that  is 
good  in  the  human,  modeled  upon  the  divine.  Without 
sacrifice  of  its  unity,  the  supreme  good  divides  into  the 
several  goods  w^hich  attain  this  quality  through  the  person- 
ality;  it  includes  such  as  are  inherent  in  the  fundamental 
relations  in  which  man  stands  towards  the  order  of  his  1  fe 
and  being.  These  personal  values  are  life,  health,  dignity, 
honor,  liberty,  together  with  such  relations  as  become  ob- 
jects of  practical  endeavor  by  virtue  of  thinking,  feeling, 
and  willing.  The  values  of  the  second  order,  or  cultural 
values,  express  the  trait  of  humanity,  the  susceptibility  to 
human  culture  uponadivinemodel.  They  include  religion, 
science,  fine  and  applied  art  —  the  latter  a  combination 
of  science  and  art — -  as  well  as  education,  morality,  and 
law. 

The  more  jirccisc  formulation  of  law  involves  an 
appreciation  of  the  realm  in  which  ]iroperty  is  realized. 
These  realms,  according  to  Krause  and  Ahrens,  are  the 
realm  of  ])ersonality  and  the  realm  of  property.  The 
realm  of  personality  com])rises  life  in  all  essential  aspects; 
and  the  stages  thereof  are  indi\idual  ]K^rsonality,  mar- 
riage and  the  family,  the  conmiunity,  the  race  or  the 
union  of  races  into  a  nation  or  State,  and  finally, 
"the  federation  of  ])eo])les  which  nations  are  destined 
to  form."     The  domain  of  ])roperty  regulation  and  of 


§36]  RFXENT  SYSTEMS  247 

culture  is  characterized  by  the  dominant  pursuit  of  a 
si)ecial  purpose.  Law  is  the  regulative  principle  of 
personal  and  proprietary  interests.  Law  is  the  organic 
ordering  princi]:)le  applied  to  the  various  relations  of 
life.  The  legal  relations  are  merely  relations  of  prop- 
erty in  so  far  as  these  are  considered  from  their  legal 
side.  Every  legal  realm  and  institution  must  be  devel- 
oped from  a  uniform  principle.  Law  and  morality  seek 
to  realize  the  good.  They  differ  in  that  law  is  chiefly 
directed  to  outer  and  enforcible  transactions,  —  to  the 
legality  of  the  transaction  —  while  morality  is  directed 
to  the  intent  or  disposition.  Morality  includes  a  more 
extensive  domain  is  so  far  as  what  is  legally  prescribed 
or  forbidden  is  also  ethically  prescribed  or  forbidden. 
Morality  demands  an  ethical  motive  for  right  action, 
demands  that  it  shall  be  done  "with  pure  motives  for 
the  sake  of  the  right  itself,  as  a  part  of  the  human  and 
divine  order  without  coercion  or  penalty."  ^  Law  and 
justice  in  the  last  analysis  depend  upon  God.^  The 
relation  of  the  idea  of  law,  the  true  expression  of  justice 
and  material  law  to  positive  or  formal  law,  is  expressed 
in  the  requirement  of  justice  that  all  law  shall  be  in 
accord  with  right.  The  subject,  or  the  medium  of  the 
law,  is  man  "as  one  who,  by  virtue  of  his  rational  quality, 
is  an  end  to  himself,  and  who  can  utilize  material  things 
as  a  means  for  his  life's  purpose."  The  object  or  con- 
tent of  law  is  whatever  may  be  made  serviceable  to 
rational  purposes.^ 

In  the  second  volume  of  the  "Naturrecht,"  the  legal 
relations  bearing  ui)on  the  theory  of  values  are  further 

1  "Naturrecht,"  I,  pp.  223-283,  297-316  ("Coiirs  de  droit    nat- 
urel,"  I,  pp.  158-167,  with  note  I,  p.  1.58). 

2  "Naturrecht,"   I,    pp.    316-322,    221   seq.       Ahrens    distinctly 
rejects  Hegel's  pantheism.     "Naturrecht,"  I,    p.  187 

3  "Naturrecht,"    I,   322-337,   348-351. 


248  CIVIC   EMANCIPATION  [Ch.  V 

developed  and  for  the  most  part  in  the  modern  spirit; 
yet  there  is  no  real  progress,  no  tangible  result;  indeed, 
essentially,  nothing  is  added.  Law  and  its  institutions 
are  set  forth  as  available  and  useful;  in  brief  the  phib 
osophy  of  law  follows  the  science  of  law,  instead  of  illumi- 
nating  critically  the  content  of  the  law  and  of  attempting 
its  further  development  as  a  contribution  to  civilization. 

As  Dahn  properly  notes, ^  the  legal  philosophy  of 
Krause  and  Ahrens  is  based  upon  an  equivocal  use  of 
terms,  in  that  the  good  ("bonum,  dyaöoi/")  is  also  prop- 
erty, "das  Gut,"  and  in  that  properly  is  likewise  viewed 
and  valued  as  the  good.  The  merit  of  his  legal  phil- 
osophy lies  in  the  first  place  in  its  development  and 
elaljoration  of  the  Hegelian  "Kulturstaat,"  and  again 
in  the  emphasis  of  the  relative  independence  of  the 
several  realms  of  law  —  the  realms  of  legal  authority, 
which,  since  Ahrens,  and  on  the  basis  of  his  terms,  have 
been  called  "Rechtsgüter,"  (legally  protected  interests). 
By  this  means  fixed  points  were  established  in  the 
general  field  of  government  and  law,  with  due  consid- 
eration of  the  part  played  by  the  individual  in  the 
State.2 

5:  Herbart.  The  practical  philosophy  of  Herbart 
(1776-1841)  is  founded  upon  his  doctrine  of  ideas. ^ 
The  moral  ideas  are  the  ideas  of  inner  freedom,  of  per- 

'  "Zur  Rechtsphilosophie,"  pp.  36S  seq. 

"^  Berolzheimer,  "Die  Kntgeltung  im  Straf  rechte,"  pp.  1G2-16S; 
'Rechtsphilosophisclie  Studien,"   pp.    100  103. 

^Herbart,  "Allgemeine  Praktische  Philosophie,"  "Collected 
Works,"  Hartenstein  edit.,  8  vols.,  Leipzig  ISfjl,  pp.  2>-2V2. 
"Analytische  Beleuchtung  des  Naturrechts  und  der  Moral,"  "C'ol- 
lectcfl  Works,"  S,  ])p.  215  405.  "Aphorismen  zur  Praktischen  Phil- 
osoiiliic,"  "( 'oll(  (  led  Works,"  Hartenstein  edit.,  vol.  9,  Leijizig  1851, 
pp.  3.S'.)  11'.).  Of  sjucial  interest  al.so  are  "Über  einige  Beziehungen 
zwischen  Psychologie  und  Staatswissenschaft,"  "Collected  Works," 
9,  pp.  199  219.    "Über  die  Unmöglichkeit    persönliches  Vertrauen 


§36]  RECENT  SYSTEMS  249 

fection,  of  charity,  of  justice,  of  mercy.  The  ideas  form 
exemplars  for  human  conduct.  They  appeal  to  the 
human  will,  to  the  "stronger  and  the  weaker  wills, 
which  are  more  or  less  well  developed  copies  of  the 
ideas."  "Strife  offends,"  and  hence  the  idea  of  dis- 
approval.^ "Unrewarded and  unpunished  deeds ofifend," 
hence  the  idea  of  equity  demanding  reward  and  punish- 
ment.^ In  Herbart  the  ideas  of  law  and  equity,  and 
thus  of  the  philosophy  of  kiw  in  general,  assume  a 
complete  ethical  form,  and  become  a  division  of  ethics. 
Herbart's  ethics  rests  upon  a  psychological  basis.  It 
appeals  to  the  will  and  is  determined  by  the  "moral 
sensibility."  ^      From     these     primary     ideas     Herbart 

im  Staate  durch  künstliche  Formen  entbehrlich  zu  machen,"  "Col- 
lected Works,"  9,  pp.  221-240.  "Zur  Lehre  von  der  Freiheit  des 
menschlichen  Willens,"  "Collected  Works,"  9,  pp.  243-385. 

^"Allgemeine  Praktische  Philosophie,"  pp.  33-60,  p.  30,  pp.  49, 
71.  Herbart  thus  shows  an  agreement  with  Schopenhauer's  posi- 
tion which,  in  opposition  to  Hegel,  recognizes  the  positive,  and  in 
principle,  the  more  fundamental  conception  in  the  wrong,  the  right 
being  its  negation.  In  his  "Analytische  Beleuchtung  des  Nat- 
urrechts," §55  ("Collected  Works,"  8,  pp.  267  seq.),  Herbart  rciers 
to  Crotius:  "Hugo  Grotius  shows  that  law  must  have  originated  from 
dissatisfaction  of  conflict,  for  he  refutes  the  contention  that  advan- 
tage was  the  source  of  law,  and  restricts  his  entire  dissertation  to 
the  consideration  of  war.  .  .  .  He  had  hardly  need  to  say  that 
strife  displeases.  This  displeasure  pervades  his  entire  admirable 
work." 

^"Allgemeine  Praktische  Philosophie,"  pp.  55,  53-60:  "Justice 
and  equity  as  traits  of  character  must  have  been  acquired  in  con- 
sequence of  displeasure  with  strife  and  unpunished  deeds."  ("Ana- 
lytische Beleuchtung,"  etc,  §  136,  "Collected  Works,"  8,  p.  344. 

^"Allgemeine,"  etc.,  "Collected  Works,"  8,  pp.  3-24.  Also  "Ana- 
lytische," etc.,  §  54,  pp.  262-266.  The  five  original  ideas  —  of 
subjective  freedom,  of  perfection,  benevolence,  right,  and  equity  — ■ 
are  not  to  be  derived  from  a  single  supreme  idea.  The  contraction 
of  these  original  ideas  in  the  unity  of  the  person  gives  rise  to  vir- 
tue.    "Allgemeine,"  etc.,  p.  109. 


253  CIVIC   EMANCIPATION  [Ch.  v 

develops  the  derivative  ideas.  "When  one  thinks  of  a 
number  of  persons  assembled  within  a  given  area,  the 
varied  products  of  which  invite  and  engage  their  atten- 
tion, and  when  one  offers  each  of  these  products  to  all 
of  the  candidates,  the  natural  and  expected  result  is 
that  these  persons,  filled  with  desire,  will  quarrel ;  but 
such  strife  is  to  be  avoided,  and  the  means  of  avoid- 
ing it  leads  to  the  idea  of  a  society  dominated  by 
law."  ^ 

"Strife  may  arise;  this  emergency  requires  either  a 
compromise  so  that  it  may  not  arise,  or  a  settlement 
so  far  as  it  has  arisen."  Concession,  that  is,  a  division 
of  the  contested  property,  may  avoid  strife.-  Thus 
Herbart  reaches  the  establishment  of  real  rights 
through  the  principle  of  avoidance  of  conflict.  "If, 
however,  conflict  has  broken  out,  if  actions  contrary  to 
law  have  been  committed,  the  next  step  is  to  minimize 
the  consequences  thereof."  The  disapproval  of  un- 
atoned  deeds  brings  about  punishment  of  the  offender 
and  the  reward  of  good  actions.^  The  administration 
of  the  community  arises  from  benevolence.  It  seeks 
the  "general  good,  that  is,  the  highest  possible  amount 
of  satisfaction  for  all."  "Benevolence  is  not  restricted 
to  merit;  it  welcomes  every  sympathetic  advance."  A 
mulual  spiritual  sympathy  jjinds  the  members  of  a 
community  into  a  cultural  unity.  "When  the  individ- 
uals are  animated  by  a  single  spirit,  which  no  one 
feels  as  his  exclusively,  and  to  which  no  one  feels  alien, 
the  situation  may  be  regarded  as  that  of  a  single  soul 

'  I'  7().  In  s(jinc  of  his  minor  writinj^s  Herbart  likewise  notes 
that  "ihc  |)rc'siip[)ositioii  of  a  Ici^al  sociely  is  that  each  individual 
desires  to  avoid  c(inflict."     "A|)liorismen,"  etc.,  p.   100. 

*  Pp.  78,  7s  s:?. 

'  ".\II^;cni(inc,"  etc.,  pji.  SI5  ()().  "Analytische,"  etc.,  pp.  315- 
!52().     ".'\|)liorisinen,"  etc.,   p.  41.1. 


§3G]  RECENT  SYSTEMS  251 

that  has  its  life  in  all  of  them  collectively."     Thus  the 
community  becomes  a  "spiritual  community."  ^ 

"If  society  is  to  have  a  basis  of  continuity  it  requires 
an  external  bond."  "The  State  is  characterized  by  its 
coercive  power."  "Legal  duties  are  emphasized  by 
coercion."  Inasmuch  as  not  every  association  "con- 
sidered in  itself  alone  can  establish  an  authority,  and 
through  such  authority  protect  itself,"  it  follows  that 
"the  entire  country,  affected  as  it  may  be  by  conflicting 
interests,  should  be  governed  by  the  same  authority. 
Thus  arises  a  State  which  comprises  a  number  of  smaller 
and  differently  disposed  groups."^  "TheState  is  an  asso- 
ciation protected  by  authority;  and  its  interests  include 
the  interests  of  all  associations  which  have  been  formed, 
or  will  be  formed,  within  its  sphere  of  influence."  "The 
three  factors  of  the  conception  of  the  State  are  private 
will,  institutions,  and  authority."  "Private  will  estab- 
lishes society."  The  institutions  are  those  provisions 
"which  would  have  to  exist  in  society  even  though 
society  were  not  formed  into  a  State."  The  most  im- 
portant of  such  institutions  are  the  laws.^ 

1  Pp.  90-96,  96-101,  101^106.  The  statesman  is  not  an  edu- 
cator, but  "he  may  seek  the  common  spirit  wherever  he  finds  it, 
particularly  in  the  minor  social  relations."  "Thereby  the  will  of 
men  transcends  the  ordinary  selfishness  and  reaches  a  higher  sphere 
in  which  a  common  endeavor  is  vitalized  and  justified."  "Further- 
more the  statesman  may  have  a  concern  for  the  largest  and  most 
general  interests;  thus  men  acquire  respect  for  the  totality." 
("Analytische,"  etc.,   §§  173,  174,  p.  366.) 

Politics  and  pedagogy  are  branches  of  the  science  of  virtue.  The 
education  of  the  young  is  directed  to  the  development  of  virtue, 
and  for  this  end  awakens  a  many-sided  interest  and  the  development 
of  a  stable  character.  ("Allgemeine,"  etc.,  pp.  143  seq.;  "Analy- 
tische," etc.,    §§  124  seq.,   169-172.) 

2  Pp.  129;   77;   183;   130  seq. 

3  "Analytische,"  etc.,  §  177;  "Col.  Works,"  8,  pp.  367  seq.  Also 
"Aphonsmen,"  etc.,     "Col.  Works,"  9,  p.  406. 


252  CIVIC  EMANCIPATION  [Ch.  V 

August  Geyer  (1831-1885),  in  his  clear  and  well- 
written  compendium  of  the  philosopl:y  of  law  entitled 
"Geschichte  und  System  der  Rechtsphilosophie  in 
Grundzügen,"  applied  the  philosophy  of  Herbart  to 
legal  science.^ 

6 :  Dahn.  Felix  Dahn^  (b.  1834)  a  disciple  of  Professor 
Prantl,  presents  an  idealistic  legal  philosophy.  To  philos- 
ophize, he  sa>s,  means  to  seek  principles.  The  problem 
of  the  philosophy  of  law  thus  becomes  "to  express  abso- 
lute law  in  the  concept  of  law,  and  in  the  resulting 
legislation,  as  well  as  in  the  several  phenomena  of  life. 
The  philosophy  of  law  must  seek  and  prove  the  rational 
and  necessary  element  of  law."  ^ 

Just  as  language,  family,  art,  and  religion,  so  likewise 
are  morality,  law,  and  the  State,  characteristic  of 
"human  qualities,"  and  such  qualities  are  the  phenomena 
in  the  life  of  peoples  which  appear  "uniformly  at  all 
stages  of  culture,  though  with  everchanging  expressions." 
These  qualities  arise  from  an  inner  factor  which  "in  its 
last  analysis  is  inexplicable,"  namely,  the  rational  char- 
acter; and  from  an  external  source,  the  aggregate  of  the 
"historical  conditions  operative  in  space  and  time." 
Individual  and  social  j^sychology  reveal  among  the 
human  (lualitics  a  tendency  towards  law  and  govern- 
ment, which  are  made  manifest  in  V:c  realization  of  law 

^Geyer,  "Die  Lehre  von  der  Notwehr,  eine  Straf  recht  Uche  Abhand- 
lung," Jena  1857,  p.  iv  of  the  preface;  pp.  8-18  outline  the  develop- 
ment of  Herbart's  philosophy  of  law. 

^The  writings  of  Du/i«  here  pertinent  are:  "Die  Vernunft  im  Recht. 
Grundlagen  der  Rechtsphilosophie,"  Berlin  1879  (which  developed 
from  a  criticism  of  Ihering's  "Zweck  im  Recht,"  Vol.  I).  "Über 
Wesen  und  Werden  des  Rechts,"  "Z.  f.  \'.  Rc-chtsw.,"  Vol.  II,  1879, 
pp.  1  10;  \'<>1.  111,  Sliilti;ait  ISSI,  ])|).  I  lt>  (a  i)hll()s()ph\-  of  law 
presenile]  in  i  licscs). 

'"Vom  WVsin  II.  Werden  des  Keclils,"  §§  l-ti;  "Die  Vernunft 
im  Recht,"  pp.  li>  sei]. 


§36]  RECENT  SYSTEMS  253 

and  government.  The  actual  origin  of  law  and  govern- 
ment lies  in  physical  necessity,  which  leads  men  to  the  use 
of  natural  resources,  and  to  social  co-operation.  The 
ideal  origin  is  "an  inner  logical  necessity,  the  logical 
or  rational  need  to  bring  the  individual  under  the  gen- 
eral; hence  there  result  laws  and  the  law.  To  bring 
about  the  complete  realization  of  the  idea  of  law,  the 
State  upholds  the  law,  which  in  turn  rests  upon  the 
strong  idealistic  impulse  of  patriotism,^  Law  thus 
becomes  "a  rational  peaceful  ordering  of  a  community 
of  men  in  their  outward  relations  to  one  another  and  to 
things."  2  The  State  becomes  "the  communal  expres- 
sion of  a  unified  people  for  the  protection  and  fostering 
of  law  and  culture."^  The  oldest  form  of  law  is  that 
through  usage  —  "the  law  as  crystallized  custom." 
Property  arises  through  "the  protection  of  possessions, 
even  though  detention  has  ceased  through  the  acknowl- 
edgment of  the  ownership  on  the  part  of  the  community. 
Such  acknowledgment  also  played  a  part  in  the  law  of  the 
family,  especially  in  regard  to  marriage  and  paternal 
authority,  and  thus  transforms  what  were  originally 
relations  of  material  fact  into  legal  relations. 

Upon  the  origin  of  the  State,  and  upon  the  relation 
of  State  and  law,  Dahn  concludes  that  "the  State  arises 
neither  through  explicit  nor  implicit  contract,  nor 
through  superhuman  intervention,  but  instinctively  from 
the  kindred  clan  and  the  community.  Its  sources  lie  in  the 
natural  impulse  towards  law,  and  in  racial  gregariousness. 
The  tendency  towards  government  is  the  idealized  form 

1  "Vom  Wesen,"  etc.,  §§  8,  9,  10,  11,  12. 

2  "Vom  Wesen,"  etc.,  §  8,  nos.  6,  13;  "Die  Vernunft,"  etc.,  p.  14. 

3  "Vom  Wesen,"  etc.,  §  14.  Dahn  here  advocates  the  "Kultur- 
staat" as  against  the  "Rechtsstaat."  "Zur  Rechtsphilosophie," 
p.  335.  "The  State  is  both  'Rechtsstaat  und  Kulturstaat."'  ("Die 
Vernunft,"  etc.,  pp.  60,  60-64.) 


254  CIVIC  EMANCIPATION  [Ch.  V 

of  the  trend  towards  nationality.  The  State  does  not 
create  law  but  is  its  prerequisite;  it  is  the  setting  that 
provides  the  secure  establishment  of  the  law.  His- 
torically the  State  is  distinguished  from  the  kindred 
association  and  community,  not  absolutely,  but  relatively ; 
that  is,  through  the  greater  emphasis  of  the  national 
interests,  of  the  more  conscious  external  contrast,  and 
practically  through  the  larger  number  of  common 
purposes." 

According  to  Dahn,  punishment,  viewed  objectively, 
is  "the  assertion  by  repression  that  maintains  a  rational 
peace  against  irrational  attack."  Ethics  and  law  differ 
in  principle.  Morality  is  the  idea  of  the  good ;  it  is  the 
rational  means  of  internal  peace;  while  law  is  the 
rational  means  of  external  peace  in  the  relations  of 
men  to  one  another.  From  this  it  follows  that  legal 
duties  can  be  enforced,  but  that  ethical  commands 
cannot  be  enforced;  and  likewise  that  the  disposition 
of  the  ethical  spirit  prevails  above  conformity  of  the 
law.  "Under  normal  circumstances"  every  breach  of 
the  law  is  also  a  breach  of  morals.  ^ 

Dahn  calls  his  position  "Historism,"  or  "the  specula- 
tive development  of  the  older  historical  school."'-  He 
presents  a  synthesis  of  Hegel  and  Schelling,  a  dialectic 

»"Vom  Wesen,"  etc.,  §§  19,  34,  35,  36,  31,  18,  and  §  8,  no.  5. 

'^"In  the  combination  of  'Historism'  with  dialectical  speculation, 
and  along  with  a  modest  recognition  of  the  relativity  of  all  human 
knowledge,  I  perceive  the  future  trend  of  all  legal  philosophy." 
In  this  statement  Dahn  attempts  to  avoid  the  error  of  the  "histori- 
cal school  (of  Savigny),  which  looked  upon  a  nation  merely  as  an 
association  in  which  law  arises  and  through  which  its  character 
is  determined,  .  .  .  whereas  it  is  evident  that  the  impulse  towards 
law,  anrl  the  conception  of  law,  are  realized  by  virtue  of  an  ideal 
necessity  and  a  real  need,  long  before  the  appearance  of  the  nation 
in  llic  narrower  affiiiiitions  of  llic  finiiK',  llic  clan,  t!ie  horde,  the 
community."     l^ahn,  "Die  Vernunft,"  etc.,  j).  12. 


§36]  RECENT  SYSTEMS  255 

or  idealistic  "Historism."  According  to  Dahn,  the 
philosophy  of  law  is  to  be  developed  by  the  application 
of  a  philosophical!  method  in  combination  with  a  com- 
parative study  of  law.  He  denies  the  position  of  "nat- 
ural law";  there  is  no  ideal  model  law,  for  law  is 
always  the  rational  and  peaceful  ordering  of  the  external 
relations  of  a  particular  and  concrete  human  society. 

7:  Lasson.  The  position  that  Adolf  Lasson^  (1832-) 
assumes  is  that  of  Hegel's  "Kulturstaat."  Like  Dahn, 
he  withdraws  wholly  from  the  doctrine  of  "natural  law." 
He  combines  speculative  considerations  with  historical 
study.  In  his  view  the  problem  of  the  philosophy  of 
law  is  "to  interpret  the  prevailing  law  in  its  inner  nature 
and  in  its  relation  to  other  movements  and  phenomena 
of  life."  2  Of  the  historical  school  he  says,  "To  under- 
stand law  and  government  scientifically  means  to  under- 
stand their  historical  genesis,  which  justifies  their  neces- 
sary development  and  their  organic  connection  with 
the  soil  on  which  they  grew.  The  historical  is  likewise 
the  rational  method.  Law  can  only  be  that  which  pre- 
vails, which  lives  and  finds  its  source  in  human  con- 
sciousness." Lasson  defines  law  as  the  aggregate  of 
the  governmental  prescriptions  enforced  by  the  State. 
Therefore  law  and  the  State  are  inseparable. 

In  developing  his  legal  philosophy  Lasson  offers  an 
analysis  of  man  according  to  his  bodily  and  mental 
nature,  including  a  study  of  "human  relations," 
and  a  consideration  of  "human  interests."  In  the 
analysis  of  the  human  mind  Lasson  is  led  to  assume  a 
free  will  in  Kant's  sense.     "The  will  is  autonomous  so 

'  "System  der  Rechtsphilosophie,"  Berlin  and  Leipzig  1882» 
p.  19. 

^  "System,"  etc.,  p.  10.  Lasson  conceived  the  philosophy  of 
law  as  a  division  of  ethics,  as  the  science  of  the  realization  of  the 
idea  of  good  in  the  human  will.      (p.    1.) 


256  CIVIC  EMANCIPATION  [Ch.  V 

far  as  it  evolves  its  own  law  spontaneously  from  the  form 
of  its  own  rationality.  That  is  good  which  corresponds 
to  the  practical  reason,  and  that  will  is  a  good  will  which 
desires  the  good,  and  desires  it  for  no  other  motive  than 
because  it  is  good.  The  good  will  that  comes  to  be  in 
permanent  sympathy  with  the  nature  of  the  subject 
is  the  truly  free  will."  "The  elevation  of  the  natural  will 
from  a  natural  to  a  free  will  proceeds  by  training  the 
will,  by  education."  The  highest  stage  of  the  eman- 
cipation of  the  will  is  to  be  called  morality  only 
when  it  is  directly  allied  to  the  holy  will  of  God; 
but  the  objective  organ  of  morality  is  the  Church."^ 
Among  the  human  relations  Lasson  emphasizes  the 
family  and  the  people.  The  interests  of  men  he  divides 
into  the  material  or  economic  individual  interests  and 
the  social  interests.^ 

Such  is  Lasson's  view  of  the  law,  and  of  its  relation 
to  the  "practical  reason"  and  the  "natural  will."  In 
this  connection  the  w^ill  appears  as  "a  variety  of  the 
rational  will  which  is  assumed  to  be  still  in  the  stage  of 
the  natural  will,  and  is  moved  by  impulses  and  desires 
to  which  reason  is  added  at  first  merely  as  an  external 
limiting  and  restricting  influence."  In  a  later  connec- 
tion he  characterizes  law  as  "the  statutory  order,"  and 
finally  as  a  limiting  norm,  as  "the  limit  of  authority." 
The  ]irinciplcs  of  law  are  justice  and  liberty.^  Inas- 
much as  positive  law  is  an  external  ordering  of  a  more 

»"System,"  etc.,  pp.  19,  21,  22,  113-161,  162-174,  174-192 
154,  141-161,  159-161. 

*  "System,"  etc.,  p.  187:  "Tlic  limnaii  comimmity  in  so  far  as  it 
affords  the  setting  for  the  interplay  of  all  interests  which  all  indi- 
viduals or  groups  thereof  pursue  may  be  called  society,  or  more 
exactly  civil  society." 

'"System,"  etc.,  pp.  19.V198,  198  207,  207-215,  215-242, 
24.2-282. 


§36]  KtXENT  SYSTEMS  257 

or  less  accidental  historical  character,  justice  becomes 
the  adequate  expression  of  the  practical  reason,  and  as 
compared  with  the  law,  is  an  "ideal  demand"  that  never 
can  be  fully  realized. 

The  supreme  function  of  law  consists  in  its  service 
as  at  once  the  expression  and  the  medium  for  the  inner 
life  and  the  spiritual  growth  of  the  people.  As  a  reflec- 
tion of  the  subconsciously  active  cultural  forces  of  a 
particular  national  spirit,  the  law  becomes  an  harmon- 
ious expression  of  the  relation  between  the  inner  life 
and  needs  of  the  community  and  the  outer  forms  of 
regulation  of  the  life  of  the  community.  By  this  means 
law  "attains  its  value  and  its  high  positive  significance 
for  the  cultural  life  of  nations.  By  obeying  their  own 
positive  laws  nations  attain  their  freedom,  and  men 
living  in  communities  acquire  the  warrant  of  their 
human  dignity." 

The  State  is  "a  human  association  possessing  an  organ- 
ized supreme  authority  as  the  ultimate  source  of  all 
coercion."  To  the  State  belong  the  people,  the  land, 
the  sovereignty.  The  authority  of  the  State  and  the 
coercion  which  it  exercises  are  at  the  service  of  law. 
Hence  there  is  no  law  without  government,  and  govern- 
ment has  for  its  purpose  the  maintenance  of  the  law.^ 
In  its  origin  the  State  is  at  once  a  product  of  nature  and 
a  necessary  result  of  the  rational  disposition  of  man.^ 
In  its  origin  the  State  is  remote  from  the  will  of  the 
people.  "The  sovereignty  of  the  people  is  a  meaning- 
less term."  ^    The  State  is  the  realized  legal  order  and 

1  "System,"  etc.,  pp.  231,  242  seq.,  283,  287. 

2  "System,"  etc.,  pp.  298-300.  Jellinek  accordingly  regards 
Lasson  as  an  advocate  of  the  "psychological"  theory  of  the  origin 
of  the  State.     {Jellinek,  "Allgemeine  Staatslehre,"  p.  195,   note   1.) 

8  "System,"  etc.,  pp.  293-311. 


253  CIVIC  EMANCIPATION  [Ch.  V 

its  function  is  to  make  order  real.^  According  to  Lasson 
the  activity  of  the  State  in  the  course  of  historical  devel- 
opment shows  a  tendency  to  confine  itself  to  the  mini- 
mum sphere,  to  leave  the  largest  play  to  the  free 
activity  of  all  forces,  and  to  intervene  as  a  restraining  force 
only  when  the  maintenance  of  the  State  is  in  any  manner 
endangered.  The  view  thus  expressed  without  modifica- 
tion is  hardly  correct.  The  problems  and  the  sphere  of 
governmental  functions  in  administration  are  of  variable 
scope  according  to  the  general  cultural  trend  of  a  par- 
ticular people  at  a  particular  time.  In  reality  the  State 
exists  always  and  only  as  a  positive  historical  phenome- 
non. From  the  point  of  view  of  civilization  the  highest 
form  of  State  is  the  national  State,  and  in  consideration 
of  the  civilizing  influences  of  Christianity,  it  is  proper 
to  speak  of  a  Christian  State.  The  ideal  purpose  of 
government  not  always  realized  is  the  advancement  of 
law  towards  material  justice.  "Justice  in  its  applica- 
tion to  the  fundamental  relations  of  the  State  offers  the 
ideals  of  freedom  and  equality  as  the  goal  for  such 
development."  ^ 

In  Lasson's  view  international  law  has  no  true  legal 
status;  it  is  not  "a  true  law  of  a  formal  and  a  positive 
character."  ^ 

Hegel  proposed  the  conception  of  a  wrong  without 
dishonest  intention,  an  objective  violation  in  deed,  or 
relation  without  subjective  blame.  Lasson  adopts  this 
concei^ion  and  calls  it  blameless  wrong.     Justice  re-es- 

^  Lasson  does  well  to  substitute  the  word  "function"  for  that  of 
"purpose"  ("Zweck");  for  the  latter  at  once  suggests  a  utiPitarian 
conception  as  though  the  State  existed  for  the  purpose  of  serving 
certain  interests.     ("System,"  etc.,  pp.  310  seq.,  313  seq.) 

2  "System,"  etc.,  pp.  310-350,  670-68G,  350-3G8,  368-380. 

'"System,"  til-.,  PI).  405,  394-407.  See  also  Berohheimer, 
"Rechtspliii<)so|)liis(lic  Studien,"  pj).  45  seq. 


§36]  RECENT  SYSTEMS  259 

tablishes  right  when  wrong  has  been  committed. 
A  notable  passage  in  regard  to  property  occurs  in  Las- 
son's  philosophy  of  private  law.  He  holds  that  the 
institution  of  property  is  not  established  through  the 
utility  which  the  possession  of  property  provides.  The 
supreme  consideration  in  the  regulation  of  property 
relations  is  justice.  Justice,  however,  does  not  consist 
in  the  equal  distribution  of  property.  "To  make  men 
equal  would  be  to  invert  nature  and  to  invite 
destruction."  ^ 

1  "System,"  etc.,  484,  518,  518  seq.,  598,596,592-615. 


260  ECONOMIC  REALISM  [Ch.  VI 


CHAPTER  VI 

THE   EMANCIPATION   OF  THE  PROLETARIAT: 

ENCROACHMENT  UPON  THE  PHILOSOPHY 

OF  LAW  BY  ECONOMIC  REALISM 

FRENCH  COMMUNISM:  (1)  SAINT-SIMON;  (2)  FOURIER;  (3)  LOUIS 
BLANC;  (4)  COMMUNISM,  ANARCHISM,  AND  SOCIALISM.—  GERMAN 
SOCIALISM:  (1)  MARX;  (2)  LASSALLE;  (3)  ENGELS;  (4)  RODBERTUS; 
(5)  BEBEL;  (6)  KAUTSKY;  (7)  BERNSTEIN;  (8)  A  SURVEY  OF  THE 
PROCESS  OF  EMANCIPATION.— ANARCHISM:  (1)  PROUDHON,  THE 
OLDER  VIEW;  (2)  STIRNER,  THE  EXTREME  INDIVIDUALISM;  (3) 
KRAPOTKIN,  THE  COMMUNISTIC  VIEW;  (4)  BAKUNIN.  THE  POSI- 
TION OF  VIOLENCE;  (5)  TUCKER  AND  TOLSTOI,  MODERATE  ANAR- 
CHISM.—FURTHER  TYPES  OF  SOCIALISM:  (1)  MENGER;  (2)  LORIA; 
(3)  SOMBART. 

§  37.  French  Communism.  1 :  Saint-Simon.  The 
significance  of  the  writings  of  Count  Claude  Henri  de 
Saint-Simon  ^  (1760-1825),  and  of  communism  lies  less 
in  the  positive  construction  of  the  communistic  doctrine 
than  in  the  questioning  of  existing  conditions   and  in 

*  The  writings  of  Saint  -Simon  that  are  here  pertinent  are :  "Organ- 
isateur,"  1819-20.  "Systeme  Industriel,"  1S21-22.  "Catechisme 
des  Industrieis,"  1822  23.     "Noiiveau  Christianisme,"   1825. 

The  writings,  instructions,  and  letters  of  Saint-Simon  and  the 
Saint-Simonists  are  published  together  as  "Oeuvres  de  Saint-Simon 
et  d'Enfantin,"  second  edition,  25  volumes,  Paris  1865-1872.  "Du 
Systeme  Industriel"  is  in  vols.  XXl-XXIlI  (1869);  "Nouvcau 
Christianisme"  is  also  in  vol.  XXIII,  p.  97.  "L'organisateur" 
(from  November,  1819,  to  February,  182.1)  is  in  Vol.  XX  (1869). 
"Parabole  Politique"  is  in  vol.  XX,  p|).  17  2(j;  Vol.  I  also  contains 
the  "Para''ole." 


§37]  FRENCH   COMMUNISM  261 

the  political  movement  of  socialism,  to  which  they  gave 
rise.  The  object  was  the  emancipation  of  the  fourth 
estate  —  the  liberation  of  the  laboring  class  and  particu- 
larly of  the  industrial  laborer.  While  the  emancipation 
of  the  third  estate,  the  establishment  of  a  free  class  of 
citizens,  was  essentially  a  political  movement,  and  pro- 
ceeded by  overcoming  the  dominance  of  the  Catholic 
Church,  by  abolishing  the  feudal  system,  and  by  giving 
all  citizens  a  share  in  the  government,  the  emancipation 
of  the  fourth  estate  was  essentially  an  economic  one. 
The  issue  in  the  former  was  primarily  that  of  a  political, 
in  the  latter,  that  of  an  economic,  enfranchisement. 
The  motive  of  the  civic  emancipation  was  the  desire 
for  power;  the  emancipation  of  labor,  at  least  in  its 
origins,  grew  out  of  the  struggle  for  existence.  The 
several  political  agitations,  from  the  beginning  of  the 
sixteenth  to  the  close  of  the  eighteenth  century,  as 
likewise  the  uprising  in  the  year  1848,  aimed  to  secure 
a  proper  recognition  of  the  citizen  in  the  government. 
The  purpose  of  the  economic  political  movement  that 
was  inaugurated  towards  the  close  of  the  eighteenth 
century  was  to  protect  the  proletariat  from  material 
and  moral  starvation;  yet  naturally  this  economic  trend 
was  not  uniformly  prominent  in  the  several  expressions 
of  the  movement. 

The  first  issue  of  the  "Organisateur"  of  Saint-Simon, 
1819-1820,  contains  the  "Parabole  Politique,"  which 
gained  him  his  acquittal  in  the  Court  of  Assizes.  This 
parable  inaugurates  a  new  era  in  presentation.  The 
method  there  introduced  is  still  followed  in  the  litera- 
ture dealing  with  the  problems  of  government,  society, 
law,  economics,  and  history.  It  presents  an  issue  upon 
which  opinions  are  divided,  namely,  the  use  of  the 
causal  conception  in  political  science.  Saint-Simon's 
application  of  the  conception  differs  from  that  later 


262  ECONOMIC  REALISM  [Ch.  VI 

employed  by  Marx  and  others.  He  proceeds  from  the 
position  that  the  political  value  of  each  class  is  deter- 
mined by  its  productivity,  its  indispensability  in  the 
State  and  to  the  State.  In  his  parable  Saint-Simon 
speculates  as  to  what  might  happen  were  France  to 
lose  its  most  valuable  productive  class  ■ —  its  scholars, 
artists,  proprietors,  manufacturers,  merchants,  etc.^  — 
and  were  further  to  lose  its  capitalists,  together  with 
the  royal  family  and  the  higher  officials.  The  former 
contingency,  he  concludes,  would  really  seriously  affect 
France,  which,  by  such  a  loss,  would  become  "a  body 
without  a  soul";^  in  the  second  case  others  would 
assume  the  vacated  places.^  Labor  and  talent  are 
personally  valuable;  rank  and  money  are  without 
personal  value. 

Proceeding  historically,  Saint-Simon,  in  his  "Cat6- 
chisme  des  Industrieis,"  attempts  to  establish  the  indus- 
trial class  as  the  true  core  of  the  community.  In  his 
view,  "industry"  implies  labor,  which  provides  the 
community  with  the  means  of  satisfying  its  needs  and 
desires.  Ultimately  everything  depends  upon  industry, 
and  for  that  reason  everything  must  be  done  for  industry. 
The  most  useful  and  valuable,  as  well  as  most  numerous 
members  of  society,  are  those  of  the  industrial  class.  In 
this  class,  however,  the  true  industrial  element,  the 
laborers  themselves,  owing  to  their  need  of  credit,  are 
reduced    to   a   secondary   position,    subservient   to   the 

'  "III  all  tlu'  tlirt'e  thousand  most  noted  scholars,  artists  and  arti- 
sans of  France."     "Oeuvres,"  I,  ISC)."),  ])p.  H',i,  84;  XX,  pp.  17-19. 

^  "The  nation  would  become  a  body  without  a  soul  as  soon  as 
these  would  be  lost."     "Oeuvres,"  I,  p.  85;   XX,  pp.  19  seq. 

'"But  this  loss  of  ilic  iliirty  thousand  distinguished  and  promi- 
nent individuals  of  tiic  Slate  would  produce  no  disturbance  except 
in  a  purely  sensational  relation,  for  it  would  result  in  no  political 
injury  to  the  Slate."     "Oeu\res,"  I,  ])]>.  Sf),  SH;   XX,  p.  21. 


§37]  FRENCH  COMMUNISM  2G3 

property-owning  class,  the  bankers.  A  worthy  civiliza- 
tion demands  a  social  reform  which  shall  place  the 
industrial  class  —  the  workers  in  the  largest  sense  —  in 
the  position  of  vantage.  This  view  Saint-Simon  pre- 
sents in  his  "Systeme  Industriel."  In  "Nouveau 
Christianisme"  he  proposes  the  establishment  of  a  new 
Christian  community/  based  upon  the  interests  of  the 
working  classes;  yet  the  work  contains  little  that  is 
positive  in  construction. 

The  leading  principles  of  Saint-Simon's  doctrine  and 
of  his  school  may  be  thus  summarized:^  "All  social 
institutions  should  have  for  their  object  the  amelio- 
ration of  the  moral,  intellectual,  and  physical  condition 
of  the  most  numerous  and  the  poorest  class."  "To  each 
according  to  his  capacity,  to  each  capacity  according 
to  its  achievements." 

His  doctrines  were  developed  by  his  disciples,  of 
whom  the  most  important  was  Enfantin  (1796-1864). 
After  a  period  of  success,  extending  to  about  1831,  the 
views  of  Saint-Simon  fell  into  decline,  and  finally  into 

'"God  has  said:  'Men  should  behave  towards  one  another  as 
brothers.'  This  subHme  principle  contains  all  that  is  divine  in  the 
Christian  religion."  ("Nouveau  Christianisme,"  "Oeuvres,"  XXIII, 
p.  108.  Also  pp.  159,  173.)  It  is  from  this  principle  that  all  insti- 
tutions of  the  new  Christian  dispensation  are  to  be  derived  ("Nouv. 
Christ.,"  "Oeuvres,"  XXIII,  pp.  113,  173).  "Religion  must  guide 
society  towards  the  great  end  of  improving  as  rapidly  as  possible  the 
condition  of  the  poorest  class."  ("Nouv.  Christ.,"  "Oeuvres," 
XXIII,  p.  117.) 

Saint-Simon  opposes  Catholicism  as  well  as  Protestantism,  be- 
cause, and  in  so  far  as  they  both  fail  to  give  proper  consideration 
to  this  principle.  ("Nouv.  Christ.,"  "Oeuvres,"  XXIII,  pp.  116- 
191.) 

'^"Oeuvres,"  I,  p.  VII.  See  also  "Nouv.  Christ.,"  "Oeuvres," 
XXIII,  p.  173:  "Society  must  labor  for  the  improvement  of  the 
moral  and  physical  condition  of  the  poorest  class;  society  must  be 
organized  in  a  manner  most  suitable  to  attain  this  great  end." 


264  ECONOMIC  REALISM  [Ch.  VI 

oblivion.  This  was  due  in  part  to  the  eccentricities  of 
its  advocates,  particularly  of  Enf antin,  and  in  part  to 
dissensions  among  its  leaders;  but  mainly  to  the  in- 
herent untenability  of  the  doctrine  itself.  The  most 
permanent  contribution  of  Saint-Simon  was  the  substi- 
tution of  the  conception  of  the  State  by  that  of  society. 
It  was  from  this  that  Comte  derived  the  foundations 
for  his  Sociology. 

2:  Fourier.  Fourier^  (1777-1837)  was  a  man  of 
genius,  rather  given  to  romantic  dreams  for  the  future 
of  society.  By  training  he  was  a  mathematician  and 
physicist,  which  may  account  for  his  fondness  for 
quantitative  forms  of  expression.  In  his  system  the 
fundamental  number  is  twelve.  Man  has  twelve  funda- 
mental instincts  or  natural  traits  which,  by  various 
combinations,  form  the  individual  character.  The 
social  order  of  the  future  is  to  bring  about  the  har- 
monious development  of  these  natural  traits.  He 
divides  the  community  into  a  number  of  economic  groups. 
Every  such  group,  "phalanx,"  was  to  comprise  from 
1800  to  2000  persons,  was  to  be  assigned  about  a  square 
mile  of  land,  and  was  to  occupy  a  large  communal 
edifice  called  "Le  Phalenstere."  Agriculture  and  in- 
dustry were  to  be  the  pursuits  followed.  Four-twelfths 
of  the  income  was  to  be  applied  to  capital,  five-twelfths 
to  wages,  and  three-twelfths  to  talent.^  Here  again  the 
number  twelve  plays  a  decisive  part. 

The  importance  of  Fourier  for  the  emancipation  of 
the  fourth  estate  lies  in  his  advocacy  of  the  right  to  work 
as  a  political  demand  —  a  position  previously  urged  by 
Fichte  on  oilier  grounds.     Somewhat  after  the  manner 

*  Fourier's  chief  works  are  "Traile  do  L'Association  Domestique 
Agricole,"  2  vols.,  1822  (second  edition,  1S41) ;  "Le  Nouveau  Monde 
Industriel  et  Societaire,"  1829. 

*  "Le  Nouveau  Monde,"  elr.,  1S2(),  pj).  864  seq. 


§37]  FRENCH  COMMUNISM  265 

of  the  advocates  of  "natural  law,"  Fourier  assumes  a 
natural  state  of  affairs  in  which  there  are  four  funda- 
mental economic  rights.  Society,  in  which  the  natural 
resources  are  already  disposed  of,  must  grant  an  equiva- 
lent for  these  rights.  Without  making  any  sharp  dis- 
tinction Fourier  calls  such  equivalent  the  right  to  work 
or  the  right  to  a  minimum  existence,'  and  prophesies  a 
period  of  "guaranteeism"  in  which  every  man  will  be 
guaranteed  by  society  a  minimum  livelihood,  and  pri- 
marily, the  right  to  work.  These  ideas  were  further 
developed  by  his  pupils. 

3:  Louis  Blanc.  The  most  modern  and  the  most 
reasonable  of  the  communists  is  Louis  Blanc  ^  (1811- 
1882),  and  so  far  as  concerns  the  practical  influence 
of  his  efforts,  he  is  likewise  the  most  successful.  The 
problem  which  particularly  engaged  his  attention  was 
that  of  the  unemployed.  It  seems  a  justifiable  demand, 
alike  from  the  position  of  legal  philosophy  and  of  social 
ethics,  that  the  State  or  the  community  shall  protect 
all  men  from  starvation.  The  poor  and  the  incapaci- 
tated should  be  a  concern  for  public  care;  but  the  assist- 
ance of  those  able  to  work  becomes  charity,  and  is 
immoral.  It  encourages  parasitism,  and  saps  the  moral 
force  of  the  beneficiaries  and  of  the  community.  It  is 
familiar  that  the  mediaeval  Church  did  much  to  favor 
such  demoralization.  Assistance  of  this  type  should  be 
temporary,  the  main  need  being  to  provide  work  —  a 
function   now   exercised    by    communal    and   corporate 

^  In  regard  to  the  right  to  work  see  "Traite,"  etc.,  pp.  1.37  seq.,  143. 
In  regard  to  the  right  for  a  minimum  wage  see  "Traite,"  etc.,  pp. 
126,  135;  "Le  Nouveau  Monde,"  etc.,  pp.  4,  12,  38,  42,  74,  185, 
328,  333,  373,  420,  430. 

2  Apart  from  the  manifold  contributions  to  periodical  literature 
and  important  historical  works,  Blanc  is  notable  for  his  tractate, 
"Organisation  du  Travail,"  1840.  (I  cite  from  the  ninth  edition, 
Paris,  1850.) 


266  ECONOMIC  REALISM  [Ch.  VI 

institutions.     Insurance  against  unemployment  is  simi- 
larly helpful. 

The  duty  of  the  State,  growing  out  of  its  ethical  nature, 
to  provide  work  according  to  their  capacity  for  those 
willing  and  able  to  work,  appears  in  Louis  Blanc,  as  in 
Fourier,  as  a  natural  demand,  applicable  without  reser- 
vation.    The  question^  whether  competition    serves  to 
secure  work  to  the  poor  he  tests  by  the  observation  of 
economic   conditions.     Reflecting   the    influence    of   the 
Malthuslan  position,  he  concludes  that   competition  of 
labor  depresses  wages  below  the  minumum  of  existence, 
supplies  the  manufacturer  with   the   cheapest   labor  — 
child  labor  ■ —  fails  to  provide  the  means  of  subsistence, 
and  starves  or  pauperizes  the  laboring  classes.      In  oppo- 
sition to  Adam  Smith  and  Say,  who  regarded  free  compe- 
tition as  conducive  to  the  welfare  of    the    community 
and  of  the  individual,   Louis   Blanc  maintains   that  it 
reduces  workmen  to  a  condition  of  wretched  poverty, 
and  further  maintains  that  it  injures  the  citizen-class 
through  the  resulting  cheapening  of  commodities.     In 
another   connection   he   sets   forth    that   even    political 
relations   are   undermined   by   free   com]:)etition,    which 
eventually  will  lead  to  a  deadly  conflict  between  France 
and    England.     He   proposes   to    avoid    the    pernicious 
effect  of  unlimited  freedom  by  going  to  the  other  ex- 
treme and  establishing  the  right  to  labor  by  govern- 
mental aid,   or,  in  communistic  plirase,   by  the  social 
organization   of  lab(jr.     Society  is  to   establish   public 
industrial  work-sho])s  and  a  public  system  of  agricul- 

•  "OrRaiiisation  flu  'I'ravail,"  Book  I,  cliap.  II,  pp.  20,  25  50. 
On  p.  FA)  Blanc  thus  .summarizes  his  position:  "As  statistics  show, 
coniiK'titi(jn  produces  jKJVcrty.  As  statistics  show,  the  poor  are 
extremely  j)roliric.  As  statistics  show,  the  fecundity  of  the  poor 
throws  ui)on  society  the  unfortunates  who  need  W(jrlv  but  cannot 
fnid  it.  Ihifier  these  circumstances  society  has  the  allcrnative  of 
killing  off  the  poor  or  of  supportini;  t  hem    -cither  brutality  or  fully." 


§37  FRENCH  COMMUNISM  267 

ture,  through  which  the  several  classes  of  labor  are  to 
be  communistically  organized.  But  other  callings  are 
also  to  be  publicly  provided  for,  such  as  the  literary  pro- 
fession, which  even  in  those  days  brought  no  golden 
profits.^  It  is  familiar  that  after  the  "Revolution  of 
February"  an  attempt  was  made  to  realize  Blanc's 
ideas  by  establishing  national  labor  centers,  but,  as  was 
to  be  expected,  this  proved  a  failure. 

4:  Communism,  Anarchism,  and  Socialism.  Com- 
munism, which  in  the  main  was  originated  and  developed 
in  France,  has  traits  in  common  with  socialism  and  with 
the  communistic  trend  of  anarchism;  yet  each  move- 
ment presents  points  of  contrast.  The  three  positions 
agree  in  what  they  reject.  They  decidedly  and  radically 
reject  the  existing  legal  order  and  the  resulting  economic 
situation.  They  diverge  in  the  positive  construction 
of  their  doctrines,  in  their  view  of  the  conditions  which 
are  to  replace  the  existing  state  of  affairs.  However, 
this  is  not  the  essential  difference;  the  distinctive 
criterion  dividing  communism,  anarchism,  and  socialism, 
is,  so  to  speak,  the  political  subsoil  upon  which  the  three 
tendencies  grow.  The  theoretical  foundations  serving 
the  intellectual  leaders  of  these  several  movements  are 
but  incidentally  determined  by  the  practical  purposes 
sought. 

Communists,  anarchists,  and  socialists  regard  the 
present  conditions  of  labor  and  industry  as  thoroughly 
unjust.  Communism  believes  that  labor  and  ability 
are  at  a  disadvantage;  it  proposes  radically  to  reform 
the  economic  situation  without  prejudice  or  favor. 
Everyone  who  is  efficient  shall  be  justly  rewarded; 
no  class  shall  be  favored;  the  actual  abuses  and  injus- 
tices in  the  distribution  of  property  and  income  shall  be 

^"Organisation,"  etc.  Book  I,  chaps.  Ill,  IV,  V,  Book  II,  chap. 
IV;  Book  III,  chap.  III. 


268  ECONOMIC  REALISM  [Ch.  VI 

abolished.  In  so  urging,  communism  is  politically  neu- 
tral; it  does  not  desire  to  favor  or  disfavor  one  class  in 
the  State  at  the  expense  of  other  classes  or  economic 
groups,  but  attempts  by  radical  measures  to  bring  about 
a  thorough  and  permanent  improvement. 

Anarchism  goes  a  step  farther.  It  questions  whether 
law  and  government,  the  economic  order  and  capital, 
can  ever  produce  satisfactory  economic  and  political 
conditions.  Anarchism  does  not  regard  the  existing 
laws  and  economic  order  as  the  cause  of  the  unsatis- 
factory state  of  affairs,  but  regards  as  such  the  existence 
of  law  itself,  with  its  power  of  coercion,  and  the  exis- 
tence of  capital,  which  is  assumed  to  be  its  inseparable 
concomitant.  While  communism  rejects  the  existing  law, 
anarchism  rejects  law  in  general.  It  is  opposed  not  only 
to  the  established  law  but  to  every  form  of  legal  coercion. 
It  believes  that  the  natural  altruistic  tendencies  of  men 
would  come  into  unrestricted  play,  were  law  and  govern- 
ment to  be  abolished. 

In  contrast  to  communism  and  anarchism,  socialism, 
in  the  name  of  justice,  represents  the  interests  of  the 
laboring  classes.  Socialism  is  judge  and  advocate  in 
one.  The  income  belongs  by  right  to  the  one,  and  to 
him  alone,  who  creates  the  productive  value,  who 
labors,  and  whose  labor  is  productive.  But  labor  alone 
is  ])roductive;  hence,  the  laborer  should  receive  the 
lion's  share  of  the  ])rodu(t  of  his  labor.  While  anarchism 
desires  to  set  aside  law  altogether,  and  thus  dispense 
with  the  governmental  institution,  and  while  commun- 
ism is  politically  indifferent,  socialism  represents  the 
legal  and  economic  pliiloso])hy  of  class-interests  of  the 
laborer.  In  place  of  the  legal  State,  "Rechtsstaat," 
and  the  culture  State,  "Kulturstaat,"  socialism  proposes 
a  coercive  State,  "Zwangsstaat,"  in  the  interests  of  the 
laborer.     Such  a  coercive  State  socialism  calls  society. 


§38]  GERMAN  SOCIALISM  260 

§  38.  German  Socialism.  1 :  Marx.  The  founder  of 
German  socialism,  the  chief  pillar  of  the  socialistic  doc- 
trine, was  the  Hegelian,  Karl  Marx  ^  (1818-1883).  He 
proposed  to  apply  philosophy  to  economic  relations. 
His  most  permanent  service  was  his  formulation  of  the 
philosophy  of  history.  Saint-Simon,  in  the  "Parabole 
Politique,"  applied  the  principle  of  causality  to  the  com- 
munity in  the  State;  Marx  applied  it  to  the  method  of 
history.  He  regarded  the  decisive  factors  of  historical 
development  as  the  economic-  ones;    the  factors  that 

^  Marx's  chief  work  is  "Das  Kapital.  Kritik  der  Politischen 
Ökonomie,"  fourth  edition,  edited  by  Friedrich  Engels.  Vol.  I, 
Book  I,  "Der  Produktionsprozess  des  Kapitals,"  Hamburg  1890. 
Vol.  II,  Book  II,  "Der  Zirkulationsprozess  des  Kapitals,"  second 
edition,  Hamburg  1893.  Vol.  Ill,  Part  I,  Book  III,  "Der  Gesammt- 
prozess  der  Kapitalistischen  Produktion,"  chaps.  1  28,  Hamburg, 
1894.  Vol.  Ill,  Part  II,  Book  III,  chaps.  29-52.  Hamburg 
1894,  incomplete.  A  preliminary  work,  "Zur  Kritik  der  Politischen 
Ökonomie,"  Berlin  18.')9,  is  likewise  of  great  importance. 

Marx,  "Theorien  über  den  Mehrwert,"  published  by  K.  Kaulsky, 
from  the  manuscript  material  of  "Zur  Kritik  der  Politischen  Ökono- 
mie." 1.  "Die  Anfänge  der  Theorie  vom  Mehrwert  bis  Adam 
Smith,"  Stuttgart  1905. 

2  See  the  summary  ("Zur  Kritik,  d.  pol.  Ökonomie,"  preface, 
p.  v):  "The  aggregate  of  conditions  of  production  at  any  given 
stage  of  development  of  material  resources  constitutes  the  economic 
structure  of  society,  the  real  basis  upon  which  a  legal  and  political 
superstructure  is  built,  and  to  which  correspond  definite  types  of 
social  consciousness.  The  manner  of  production  of  the  needs  of 
material  existence,  conditions  the  social,  political,  and  intellectual 
mode  of  living.  It  is  not  the  consciousness  of  man  that  conditions 
his  being,  but  conversely  his  social  life  conditions  the  consciousness." 
That  Marx  was  influenced  by  the  materialism  of  the  Hegelian 
Feuerbach  is  noted  by  Masaryk,  "Die  Philosophischen  und  Soziolo- 
gischen Grundlagen  des  Marxismus,"  pp.  1-89,  also  pp.  92-101. 

In  this  connection  Marx  has  merely  formulated  more  definitely 
the  conception  of  history  first  put  forward  by  Saint-Simon.  Engels 
gave  to  this  conception  the  name  of  "the  material  conception  of 
history." 


270  ECONOMIC   REALISM  [Cn.  VI 

had  been  unduly  ignored.  New  ideas  are  ever  likely 
to  receive  a  biassed  and  exaggerated  consideration,  and 
the  socialistic  position  over-emphasized  the  material 
conception  of  history  in  terms  of  economic  factors.  In 
the  last  analysis  the  issue  between  the  materialistic  and 
idealistic  conception  of  liistory  depends  upon  the  atti- 
tude assumed  towards  the  problem  of  causality.  If  the 
cause  be  regarded  as  equivalent  to  the  aggregate  of  the 
antecedent  conditions,  then,  as  is  true  of  other  efficient 
forces,  the  economic  factors  constitute  the  condition,  but 
not  the  exclusive  condition.  If,  however,  the  cause  be 
regarded  as  equivalent  to  the  distinctive  and  decisive 
condition,  then  the  study  of  history  shows  that  the  ideal- 
istic conception  is  correct.  Every  progress,  every  real 
advance  in  the  history  of  the  emancipation  of  mankind, 
has  been  due  to  the  initiative  of  leading  minds.  It  is 
true  that  these  find  response  on  the  part  of  their  con- 
temporaries only  when  the  cultural  conditions  of  a  given 
period  —  which  comprise  the  material  as  well  as  the 
intellectual  factors  —  furnish  a  suitable  atmosphere. 
Powder  alone  without  a  spark  is  powerless  to  produce 
an  explosion. 

It  is  not  possible  to  summarize  a  work  of  eight  hun- 
dred pages  in  a  few  sentences.  I  must  be  content  to 
select  from  his  "Ca])ital"  the  gist  of  Marx's  economic 
philosoi)hy.  A  fundamcnteil  position  in  its  develop- 
ment is  his  theory  of  Increment,  which  was  not,  as  for- 
merly held,  original  with  Marx,  but  was  borrowed  from 
the  English  socialists,  particularly  from  Thomjison.^ 
According  to  Marx  tlie  mechanism  of  excliangc  operMes 
in  such  a  manner  that  the  producer  receives  gold  (G) 
for  his  wares  (W)  and  with  the  income  produces  new 
wares   (W).      In    this   jjpoccss   of  exchangi-,   ri'])resi'nted 

^Aiilini  Mnn'cr  "l).is  Kc(  lil  .iiif  iV-n  \n\\v\\  ArinMlscM-lraij  in 
Cit.-.si  lii(  litlii  111  T  iJar.slilliini;,  "  !'■  -'"i  n"'''  ',  ami  pp.  \V.)  58. 


§38]  GERMAN  SOCIALISM  271 

by  the  formula  W-G-W,  the  W  at  the  beginning  is  the 
same  as  the  W  at  the  end  —  the  laborer  has  given  and 
received  equivalent  values.  If,  however,  the  capitalist 
puts  his  gold  (G)  in  circulation,  buys  wares  (W),  and 
again  sells  them,  he  is  not  content  to  receive  an  income 
eqiial  to  his  original  investment  (G)  ■ —  for  in  that 
event  the  whole  transaction  would  have  no  meaning 
and  be  useless  —  but  he  always  obtains  a  higher  income 
(Gl).  In  the  process  of  exchange  indicated  by  the  for- 
mula G-W-Gl,  the  increment  of  value  consists  in  so  much 
as  Gl  exceeds  G.  This  increment,  which  the  capitalist 
pockets,  is  unearned  by  him;  it  was  the  laborer  who 
earned  the  increment,  for  only  labor  is  productive.^ 
Capitalists  thus  unjustly  exploit  labor.  While  the  lab- 
orers are  limited  to  the  minimum  wage,  the  capitalists 
amass  great  fortunes,  until  eventually  a  very  small  num- 
ber cf  the  exploiters  are  in  turn  dispossessed  by  the 
great  mass  of  the  exploited.  This  process  of  disposses- 
sion will  spontaneously  occur  by  virtue  of  natural  devel- 
opment.^    Under  a  socialistic  regime  society  will  con- 

1  "Das  Kapital,"  Vol.  I,  pp.  59  seq.;   Vol.  II,  pp.  1  seq. 

2  Marx,  "Das  Kapital,  I,  pp.  727  scq.  ("Über  die  Geschichtliche 
Tendenz  der  Kapitalistischen  Akkumulation"):  "As  soon  as  this 
process  of  transformation  has  sufficiently  decomposed  the  old 
society  frcm  tcp  to  bottom,  as  soon  as  the  laborers  are  turned  into 
proletarians,  their  means  of  labor  into  capital,  as  soon  as  the  capi- 
talist mode  of  production  stands  on  its  own  feet,  then  the  further 
socialisation  of  labor  and  further  transformation  of  the  land  ar.d 
other  means  of  production  into  socialjj'  exploited  and,  therefore, 
common  means  of  production,  as  well  as  the  further  expropriation 
of  private  proprietors,  takes  a  new  form.  That  which  is  now 
to  be  exprojiriatcd  is  no  longer  the  laborer  working  for  himself, 
but  the  capitalist  exploiting  many  laborers.  This  expropriation  is 
accomplished  by  the  action  of  the  immanent  laws  of  capitalistic 
production  itself,  by  the  centralization  of  capital.  .  .  .  Centraliza- 
tion of  the  means  of  production  and  socialization  of  labor  at  last 
reach  a  point  where  they  become  incompatible  with  their  capitalist 


272  ECONOMIC   REALISM  [Ch.  VI 

duct  manvifacture  and  justly  apportion  the  distribu- 
tion  of    the   proceeds.^ 

As  already  noted,  according  to  the  Marxian  philosophy 
of  history,  the  economic  status  at  any  given  period  is 
decisive  for  the  form  which  society  assumes,  that  is, 
for  the  material  content  of  government  and  law,  or  its 
economics.  Economic  relations  always  produce  two 
distinct  classes  in  the  community,  the  exploiters  and 
the  exploited.  It  is  the  purpose  of  the  socialistic  order 
of  society  to  replace  this  perpetual  conflict  and  enslave- 
ment of  the  economically  weak  by  order  and  justice. 
The  community  is  to  regulate  production  and  give  to 
each  his  due.  "The  goal  of  development  would  be  the 
complete  unity  of  the  State  and  society."  ^  In  place 
of  a  formal  legal  equality  there  shall  be  a  material  eco- 
nomic justice;    and  this  is  possible  only  in  that  supreme 

integument.  This  integument  is  burst  asunder.  The  knell  of 
capitalist  private  property  sounds.  The  expropriators  are  expro- 
priated."    (Moore's  translations,  p.  7SS.) 

1  W.Ed.  Biermann  ("Staat  und  Wirthschaft,"  pp.  107-125,  Vol.  I) 
opposes  the  view  expressed  by  Anton  Menger  and  others  that  the 
position  of  Marx  favors  a  strong  State  control.  Biermann  urges 
that  Marx  looked  upon  the  Slate  as  a  great  brutal  expression  and 
not  as  the  assertion  of  authority.  This  interpretation  of  Biermann 
is  not  justified.  It  seems  to  me  that  Biermann  docs  not  observe 
the  peculiar  terminology  of  socialism.  Marx  regards  the  State 
as  a  capitalistic,  brutal  expression  of  power,  but  regards  socially 
organized  society  as  a  just  economic  order.  Yet  what  the  Marxians 
call  society  is  in  truth  the  State,  in  that  their  society  exercises  the 
coercive  power  of  the  State,  and  determines  tlie  legal  economic 
order.  This  social,  or  more  properly,  governmental  order,  as  the 
socialists  advocate  it,  ascribes  to  the  State  a  comprehensive  and 
omnipotent  sphere  as  against  the  dei)cndenl  incli\i(lual,  such  as  has 
not  been  advocated  since  ancient  times. 

Moreover  Lassalle  ("Arbeitcrprogram,"  pp.  40-42)  clearly  and 
explicitly  speaks  of  the  State  and  of  its  problem  as  the  emanci- 
pation of  the  working  classes. 

'  Jcllinch',  ".Mlgemeine  Staatslehre,"  p.  SI. 


§38]  GERMAN  SOCIALISM  273 

and  comprehensive  socialistically  organized  form  of  gov- 
ernment, which  is  called  society. 

The  doctrine  of  Marx,  holding  to  the  position  of  the 
classic  school  of  economics  that  only  labor  produces 
wealth^  — and  for  the  Marxians  only  the  labor  of  the 
laboring  classes  is  regarded  as  productive  —  has  been 
thoroughly  and  definitely  refuted,  not  only  by  science, 
but  by  the  actual  development  of  affairs.  The  impor- 
tance of  Marxism  lies  in  the  fact  that  through  its 
agitation  the  emancipation  of  the  laboring  classes  was 
stimulated  and  accomplished.  It  was  the  outrageous 
spectacle  of  the  harsh  exploitation  of  the  laborers  by 
the  manufacturers  — •  particularly  in  England  — •  through 
excessive  hours  of  labor,  through  starvation  wages, 
through  the  truck  system  and  the  sweating  system,  and 
through  overwork  of  women  and  children,  that  aroused 
the  protest  of  Marx.  The  abolition  of  this  slavelike 
treatment  of  the  laboring  classes  has  been  accomplished 
by  the  socialistic  movement,  which  grew  out  of  the 
work  of  Marx,  and  which  has  extended  to  all  civilized 
countries.  The  formal  goal  of  Marxism  was  a  socialistic 
coercive  State  that  should  control  and  regulate  the  pro- 
duction and  distribution  of  income;  and  the  result 
actually  accomplished  is  the  enfranchisement  of  the 
wage-earner. 

The  communistic  manifesto  of  the  year  1848,  issued 
jointly  by  Marx  and  Friedrich  Engels,  had  large  polit- 
ical influence.  Of  Marx's  minor  writings  of  the  earlier 
period  may  be  mentioned  "Zur  Kritik  der  Hegel'schen 
Rechtsphilosophie,"  of  the  year  1843.  The  conclusion 
of  the  dialectic  development  of  the  economic  revolution 

1  This  principle  is  incorporated  in  the  party  platform.  For 
example,  see  the  Program  of  the  socialistic  labor  party  of  Germany, 
May  1875,  I:  "Labor  is  the  source  of  all  wealth  and  of  all  culture." 
Reprinted  in  Conrad's  "Jahrb.,"  3d  series,  I,  p.  235. 


274  ECONOMIC   REALISM  [Cii.  VI 

is  thus  described:^  "The  proletariat  begins  to  asiert 
itself  in  Germany  through  the  invasion  of  the  industrial 
movement;  for  it  is  not  poverty  of  natural  origin  but 
poverty  artificially  created,  that  makes  the  proletariat. 
If  the  proletariat  heralds  the  dissolution  of  the  present 
social  system,  it  is  but  delivering  the  secret  of  its  own 
being,  for  it  is  in  fact  the  dissolution  of  the  social  order. 
If  the  proletariat  demands  the  abolition  of  private  own- 
ership, then  it  but  elevates  to  a  principle  of  society  what 
society  has  already  accepted  as  its  principle,  what  with- 
out its  aid  has  been  embodied  in  society  as  a  negative 
result." 

2:  Lassalle.  Ferdinand  Lassalle-  (1825-1864),  a 
political  agitator  and  brilliant  orator,  introduced  the 
Marxian  ideas  among  the  laboring  classes  in  Germany. 
He  emphasized  the  political  side  of  socialism,  and  directed 
attention  to  the  economic  and  political  representation 
of  the  in1,erests  of  the  laborer.'^  From  the  philosophical 
point  of  view  he  gives  the  socialistic  conception  of  the 
State  a  greater  definiteness  of  expression.  He  does  not 
use  the  confusing  expression,  "society,"  when  he  speaks 
of  the  State,  but  calls  it  the  State.    He  opposes  the  con- 

*  "Collected  Works,"  published  by  Mehring,  Vol.  I,  pp.  397  seq. 

^  The  political  writings  of  Lassalle  are  edited  by  Erich  Blum, 
Leipzig  1899.  Of  special  import  are  "Arbeiterprogram,"  Zürich 
1863.  (Blum's  edition,  I,  pp.  15G-200.)  "Offenes  Antwortschreiben 
an'  das  Zentral-Koniitc  zur  Berufung  eines  Allgemeinen  Deutschen 
Arbeiter- Kongresses  zu  Leipzig,"  Zürich  LS()3  (])p.  1-39).  "Macht 
und  Recht,  Offenes  Sendschreiben,"  1803.  (pp.  lOMÜG.) 
"Arbeiter- Lesebuch."  (11,  jip.  ,'")9  144.)  A  survey  of  the  writings 
of  Lassalle  is  found  in  the  "Handwörterbuch  der  Staatswissen- 
schaften," second  edit  ion.  Vol.  \',  jip.  .'')3()  seq. 

'  "Offenes  Antwortschreiben,"  p.  7  (Blum's  edition,  I,  p.  7), 
30  seq.  (Blum's  ed.,  I,  p.  37).  "Arbeiterprogram,"  pp.  32  seq. 
(Blum's  ed.,  I,  pp.  195  seq.),  "Arbeiter-Lesebuch,"  Blum's  ed.,  11, 
pp.  90,  110,  128,  139  seq. 


§3S]  GERMAN  SOCIALISM  275 

ception  of  the  Manchester  school  that  assigns  to  the  State 
the  role  of  a  night  watchman,^  and  in  opposition  to  the 
view  of  Adam  Smith  thus  develops  the  socialistic  con- 
ception of  the  State:  "History  is  the  struggle  with 
nature,  with  misery,  ignorance,  poverty,  helplessness, 
and  slavery,  to  which  the  human  race  was  subject  at 
the  beginning  of  history.  The  development  of  freedom 
is  the  story  of  the  progressive  conquest  of  this  helpless- 
ness. To  the  State  belongs  the  function  of  furthering 
the  development  of  tlie  human  race  to  a  state  of  freedom. 
It  is  the  purpose  of  the  State,  through  the  alliance  which 
it  forms,  to  place  the  individual  in  such  a  position  and 
to  attain  such  purposes  and  such  a  stage  of  existence 
as  individuals  of  themselves  could  not  attain;  to  reach 
a  position  of  culture,  power  and  liberty  which  would 
be  unattainable  to  them  as  individuals.  It  is  the  func- 
tion of  the  State  to  bring  the  human  race  to  a  condition 
of  positive  progress,  to  realize  the  culture  of  which  the 
human  race  is  capable.  It  is  the  education  and  evo- 
lution of  the  human  race  to  a  state  of  freedom."  ^ 

Although  with  a  socialistic  trend.  Lassalle  presents 
the  Hegelian  "Kulturstaat"  with  a  clearness  of  expres- 
sion too  often  absent  in  socialists  and  sociologists  alike.' 

1  This  Manchester  conception  of  the  State  is  conceived  of  under 
the  metaphor  of  "a  night-watchman  whose  entire  function  is  that 
of  preventing  robbery  and  burglary."      ("Arbeiterprogram,"  p.  39.) 

^  "Arbeiterprogram,"  p.  40. 

^  In  the  Program  of  the  socialistic  party  the  State  is  identified 
in  part,  but  in  part  only,  with  society.  In  the  Program  of  the 
social-democratic  party  (August  1869),  §  1  reads  as  follows:  "The 
social-democratic  labor  party  strives  to  establish  a  free  State  of 
the  people."  In  the  Program  of  May  1X7.5,  §  2,  it  is  affirmed:  "The 
socialistic  labor  party  aims  at  a  free  State  and  a  socialistic  type  of 
society."  In  §  1  it  is  further  stated  that  "the  total  product  of  labor 
belongs  to  society,  that  is,  to  all  parts  thereof."  What  is  meant  by 
society,  and  what  by  the  members  of  society,  unless  it  be  the  State 
and  the  members  of  the  State? 


276  ECONOMIC  REALISM  [Ch.  VI 

The  State  is  explicitly  described  and  is  not  masked  under 
cover  of  society. 

3:  Engels.  Fr.  Engels  ^  (1820-1895),  the  friend 
and  political  associate  of  Marx,  is  known  both  as  the 
editor  of  "Kapital"  and  as  an  independent  writer.  His 
chief  works  are  "Ursprung  der  Familie,  des  Privat  Eigen- 
tums und  des  Staats,"  ^  and  "Herr  Dühring's  Umwäl- 
zung der  Wissenschaft."^  In  these  he  popularizes  and 
develops  the  ideas  of  Marx.  He  thus  defines  the  material 
conception  of  history:  "The  determining  factor  in  his- 
tory is  the  direct  production  and  reproduction  of  life." 
This  in  turn  proceeds  in  two  ways;  first,  by  the  produc- 
tions of  the  means  of  subsistence,  —  of  clothing,  dwellings, 
tools,  —  and  again  by  the  reproduction  of  the  species. 
"The  social  institutions  under  which  men  live  at  a  given 
historical  period  and  in  a  given  country  are  conditioned 
by  both  forms  of  production,  by  the  stage  of  develop- 
ment of  labor  on  the  one  hand,  and  that  of  the  family 
on  the  other."  *  According  to  Engels  the  State  is  "a 
product  of  society  at  a  given  stage  of  evolution.  It  is 
a  confession  that  such  society  stands  at  the  moment  in 
an  insoluble  contradiction  with  itself,  is  divided  by 
irreconcilably  opposed  forces  which  it  is  powerless  to 
control." 

4:  RoDBERTUs.  Rodbertus-Jagetzow  (1805-1875) 
maintained  the  Marxian  view  of  the  theory  of  incre- 

'  In  addition  to  tlie  prin(i[)al  \viitini;s  of  JCngels  as  above  cited, 
there  are  considerable  cunt rii)iil ions  in  periodical  form,  including 
numerous  essays  in  "Die  Neue  Zeit."  I'or  the  earlier  writinij;s  of 
Engels,  see  the  collected  edition  of  his  puI)Ii(ations  dating  from  the 
years  1841-1847,  arranged  by  Mehring. 

^  In  connection  with  Lewis  11.  Morgan's  "Forschungen,"  1884, 
second  edition,  Slullgart  1S<S(). 

'  First  edition,  Leipzig  1878;  second  ((lilion;  /iiricli  ISSf);  third 
edition,  Stuttgart  1S9L 

*  "Der  Ursprung  der  I'aniilii/'  pp.  iv,  i;5.'3. 


§38]  GERMAN  SOCIALISM  277 

ment.  He  developed  his  theory  independently  of  Marx, 
though  both  were  indebted  to  previous  socialists.  His 
point  of  departure  is  the  statement  that  all  economic 
values,  in  contrast  to  natural  values,  cost  labor  and 
labor  alone.  Accordingly  the  time  expended  in  labor 
affords  an  economic  standard  of  value.  Interest  he 
interprets  as  the  income  from  property  without  labor. 
The  rent  yielded  by  real  estate  is  ground  rent,  and 
the  rent  yielded  by  capital  is  interest.  Rodbertus 
assigns  two  reasons  as  the  origins  of  rent  —  the  eco- 
nomic reason  is  that  under  existing  conditions  labor  yields 
a  surplus  above  the  minimum  necessity  of  livelihood  of 
the  laborer;  the  second  reason  lies  in  the  legal  principle 
of  interest,  namely,  the  private  ownership  of  land  and 
capital.  Rodbertus,  like  Marx,  in  the  consistent  devel- 
opment of  his  views,  holds  that  all  value  depends  upon 
labor,  and  thus  regards  the  income  from  rent  as  the 
exploitation  of  labor  and  of  the  product  of  the  labor  of 
others.  He  ascribes  the  existence  of  poverty  and  in- 
dustrial crises  to  the  tendency  of  wages  to  decline.^ 

To  remedy  the  existing  social  distress  Rodbertus  de- 
mands the  introduction  by  the  State  of  standard  hours 
of  work  and  of  a  standard  output.^  It  is  not  his  inten- 
tion entirely  to  dispossess  the  capitalist  of  the  increment 
of  value.  Incomes  of  ground  rent  and  capital  are  in 
principle  to  remain,  but  the  wages  of  labor  are  to  be 
generally  improved.  Rodbertus  is  not  a  true  socialist 
but  a  State  socialist.    The  State  is  to  conduct  whatever 

^  "Soziale  Briefe  an  v.  Kirchmann." 

*  Rodbertus,  "Der  Normal-Arbeitstag,"  1871  ("Kleine  Schriften," 
pp.  337-359),  particularly  p.  338:  "The  normal  working  day  of 
many  hours  must  first  be  advanced  to  a  working  day  of  so  much 
work;  it  must  be  standardized,  not  merely  in  terms  of  time  but 
particularly  in  terms  of  labor."  This  is  further  considered  on  pp. 
339  seq. 


278  ECONOMIC  REALISM  [Ch.  VI 

business  is  by  nature  public,  and  only  by  official  dele- 
gation is  business  to  be  conducted  by  private  capital, 
which  in  turn  is  to  be  operated  from  the  public  point 
of  view.^ 

5:  Bebel.  The  work  of  Bebel^  (b.  1840),  "Die  Frau 
und  der  Sozialismus,"  is  a  popular  scientific  work  dealing 
primarily  with  the  social  position  of  woman  in  the  past, 
present,  and  future;  it  is  at  the  same  time  a  propagan- 
dum  for  the  socialistic  cause.  The  enormous  success 
of  this  book  — ■  in  1904  it  had  reached  its  thirty-sixth  and 
thirty-seventh  edition  —  which  attempted  to  enlist 
women  in  favor  of  socialism,  is  in  large  measure  due  to 
its  effective  treatment  of  social  wrongs  in  the  past  and 
present.  It  is  not  free  from  exaggerations,  and  holds  the 
"capitalistic  order  of  society"  responsible  for  evils  that 
are  inevitable.  Bebel  proclaims  the  emancipation  of 
woman  through  the  socialistic  order :^  "In  the  new 
society  woman  will  becompletely  independent,  socially  and 
economically.  She  will  be  subject  to  no  form  of  domi- 
nation and  exploitation.  She  will  be  mistressof  her  fate." 
Socially  and  legally,  so  far  as  sex  does  not  involve  neces- 
sary differences,  woman  is  to  be  placed  upon  complete 
equality  with  man.  Woman  will  be  free  in  the  choice 
of  profession,  in  expenditure,  as  also  in  the  choice  of  a 
mate.  By  his  advocacy  of  free  love  he  placed  a  weapon 
in  the  hands  of  the  opponents  of  the  socialistic  doctrines, 

*  See  particularly  "Das  Kapital"  ("Literary  Remains,"  II,  pp.  77 
seq.)" 

*  "Die  Frau  uiul  flcr  Sozialismus."  Tliirtx'  to  lliirty-third  edi- 
tion (unaltered  after  the  Jubilee  edition),  Stutt.uart  1S99-19Ü2; 
thirty-sixth  to  thirty-seventh  edition,  unaltered  afler  the  thirty- 
fourth  edition,  Stuttgart  1904.  (1  eite  from  the  twenty-seventh 
edition  unaltered  after  the  jubilee  edition,  Stuttgart  1S96.)  The 
remaining  writings  of  BcIkI  arc  far  less  important  and  li'ss  inlluen- 
tial  than  this  wf)rk. 

'  "Die  I'rau,"  etc.,  i)p.  A27  sv(\.,  AW   MVA,  ■lt)4-470. 


§38]  GERMAN  SOCIALISM  279 

who  were  not  disposed  to  find  fault  with  his  economic 
and  social  views. 

Bebel  discountenances  the  fear  of  over-population 
and  the  neo-Malthusian  position.  He  offers  some  per- 
tinent remarks  upon  "over-population  of  intelligence" 
which  in  Germany  has  produced  "an  uncommonly  large 
number  of  proletariat  scholars  and  artists"  —  "a  strong 
proletariat  in  the  so-called  liberal  professions."  For 
these,  despite  their  higher  education,  can  find  no  satis- 
factory professional  income,  and  are  justly  embittered; 
all  of  which  leads  inevitably  to  political  radicalism. 

6:  Kautsky.  Kautsky  ^  (b.  1854)  devotes  his  book, 
"Die  Agrarfrage,"  to  the  interests  of  the  rural  laborer, 
the  agriculturist  and  the  independent  farmer.  He  dis- 
cusses in  detail  the  social  democratic  politics  of  the 
agrarian  position,  and  offers  pertinent  comments  and 
proposals  upon  the  public  administration  of  schools, 
the  care  of  the  poor,  the  maintenance  of  roads,  and  the 
gratuitous  conduct  of  lawsuits.  The  last  is  hardly 
likely  to  reduce  the  number  of  pettifogging  lawsuits 
among  farmers.  To  win  over  the  independent  farmer 
to  the  socialistic  movement,  Kautsky  holds  that  the 
existence  of  the  agricultural  intermediary  is  necessary, 
quite  apart  from  the  parasitic  intermediary ;  and  that  it  is 
not  part  of  the  socialistic  program  to  dispossess  "the 
non-parasitic  intermediary  m  agricultural  business,  who 
fills  an  important  function  in  economic  life."^  "The 
farmer  need  have  no  concern  for  the  welfare  of  his  home. 
The  socialistic  regime  will  not  fail  to  leave  its  influence 

1  His  writings  are  "Die  Agrarfrage.  Eine  Übersicht  über  die 
Tendenzen  der  modernen  Landwirtschaft  und  die  Agrarpolitik  der 
Sozialdemokratie,"  Stuttgart  1899;  and  various  essays  and  contri- 
butions in  "Die  Neue  Zeit." 

2  "Die  Agrarfrage,"  pp.  301  seq.,  414-417,  417-420,  436-439, 
440-451,  451. 


280  ECONOMIC  REALISM  [Ch.  VI 

upon  it;  but  the  changes  which  it  will  produce  will  be 
in  the  direction  of  sanitary  and  aesthetic  improvements 
to  the  advantage  of  the  rural  homestead." 

7:  Bernstein.  Eduard  Bernstein^  (b.  1850)  opposes 
the  "theory  of  catastrophe,"  the  view  "that  we  are 
rapidly  approaching  a  collapse  of  civil  society,  and  that 
social  democracy  should  shape  its  campaign  by  the 
prospect  of  such  imminent  social  catastrophe,  or  adjust 
its  actions  to  such  contingency."^  His  book,  "Die 
Voraussetzung  des  Sozialismus  und  die  Aufgaben  der 
Sozialdemokratie,"^  a  collection  of  his  essays  which, 
for  the  most  part,  appeared  in  the  periodical,  "Die  Neue 
Zeit,"  is  devoted  to  the  presentation  of  a  scientific  basis 
of  his  position  and  his  unqualified  repudiation  of  the 
Marxian  view.  In  his  philosophy,  as  evidenced  in  this 
and  other  writings,  he  shows  a  leaning  towards  Kant, 

• 

^  His  writings  are  "Zur  Theorie  und  Geschichte  des  Sozialismus,' 

Berlin-Berne  1901.  "Probleme  des  Sozialismus,"  "Die  Neue  Zeit,' 
1896-97,  XV,  Vol.  I,  pp.  164-171  (204-213),  303-313,  772-783; 
Vol.  II,  pp.  100-107,  138-143.  "Der  Kampf  der  Sozialdemokratie 
und  die  Revolution  der  Gesellschaft,"  "Die  Neue  Zeit,"  1897-98, 
XVI,  Vol.  I,  pp.  484-497,  548-557.  "Kritisches  Zwischenspiel,"  pp. 
740-751.  "Das  Realistische  und  das  Ideologische  Moment  im 
Sozialismus."  ("Probleme  des  Sozialismus,"  second  series,  II  A) 
"Die  Neue  Zeit,"  XVI,  Vol.  II,  pp.  225-232,  388-395.  ("Die  Prob- 
leme des  Sozialismus"  are  reprinted  in  "Zur  Theorie  und  Geschichte 
des  Sozialismus,"  pp.  167-28G.) 

2  "Social  democracy  neither  sanctions  nor  desires  the  prompt 
collapse  of  the  present  economic  position  as  a  result  of  a  great 
sweeping  industrial  crisis."  "Der  Kampf  der  Sozialdemokratie 
und  die  Revolution,"  "Die Neue  Zeit," XVI,  Vol.  I,p.  .556.  Belfort- 
Bax,  "Der  Sozialismus  eines  gewöhnlichen  Menschenkindes  gegen- 
über dem  Sozialismus  des  Herrn  Bernstein,""  Die  Neue  Zeit,"  XVI, 
I,  pp.  824  829,  contends  against  Bernstein  in  behalf  of  a  future 
governmental  "goal  and  movement." 

'Sec  likewise  Bernstein,  "Der  Kampf,"  etc.,  pp.  406-416,  the 
treatise,  "Abwehr  wider  Kautsky's  Schrift:  Bernstein  und  das 
sozialdemokratische  Programm,"  a  rejoinder  to  Kautsky. 


§38]  GERMAN  SOCIALISM  281 

and  may  be  regarded  as  a  neo-Kantian  emphasizing  the 
idealistic  factors  in  evolution  as  against  an  extreme 
materialism.^ 

8:  A  Survey  of  the  Process  of  Emancipation.  At  the 
present  time  the  newer  socialism  seems  to  have  receded 
from  the  main  positions  of  Marx's  socialism.  It  is  not 
possible  here  to  review  the  several  varieties  of  socialism. 
Marx's  theory  of  deterioration,  "Verelendung,"  which  is 
not  in  accord  with  the  facts  of  development,  was  made 
the  subject  of  a  critical  study  by  Julius  Wolf.  Basing 
his  arguments  upon  the  statistics  of  expenditure  and 
income,  upon  those  of  poverty  and  crime,  upon  the 
inheritance  tax  and  bank  deposits,  he  proved  that  the 
middle  classes  were  not  being  reduced  to  a  proletariat.'* 
It  is  only  necessary  to  contemplate  the  economic  life 
of  the  present  with  an  intelligent  understanding  to  detect, 
in  the  higher  salaried  positions  in  the  large  mercantile, 
industrial,  insurance,  and  financial  enterprises,  the  rise 
of  a  new  middle  class. 

Were  present-day  socialism  to  accept  as  its  scientific 
basis  the  doctrines  of  the  Hegelian  Marx,  it  would  be 
burdened  by  an  obsolete,  devitalized  heritage  of  the 
past,  much  as  would  be  the  present  conservative  party 
if  it  accepted  as  its  theoretical  foundation  the  philosophy 
of  the  Hegelian  theologian,  Stahl.  Marx  and  Stahl 
represent  a  superseded  point  of  view.  Although  the 
socialistic  party,  as  likewise  the  conservative  party,  has 

*  See  particularly,  "Das  Realistische  und  Ideologische  Moment 
im  Sozialismus,"  "Die  Neue  Zeit,"  XVI,  2,  pp.  225-232,388-395. 
Opposed  thereto,  see  Beljort-Bax,  "Synthetische  contra  Neumarxis- 
tische Geschichtsauffassung,"  "Die  Neue  Zeit,"  XV,  I,  pp.  171-177. 
"Kautsky,  Bernstein  und  die  Materialistische  Geschichtsauffassung," 
"Die  Neue  Zeit"  1898-99,  XVII,  2,  pp.  4-16. 

^Julius  Wolf,  "System  der  Sozialpolitik,"  Vol.  I,  "Grundlegung." 
"Sozialismus  und  Kapitalistische  Gesellschaftsordnung,"  Stuttgart 
1892. 


282  ECONOMIC  REALISM  [Ch.  VI 

acquired  a  more  powerful  position  than  it  held  when 
the  philosophy  of  Hegel  and  the  economics  of  Marx 
prevailed,  its  present  influential  position  is  presumably 
due  to  a  very  different  and  more  practically  significant 
political  principle.  Social  democracy  is  the  political 
expression  of  the  laboring  classes,  who  form  an  important 
economic  constituency  of  the  State,  much  as  the  "Bauern- 
bund" and  the  conservative  party  represent  the  political 
position  of  the  landholding  constituency,  and  of  the 
affiliated  economic  and  social  classes.  As  representing 
important  economic  interests,  these  several  parties  justly 
exercise  a  considerable  power,  and  represent  an  essen- 
tial group  in  the  development  of  the  modern  "class- 
state";  it  is  this  "Klassenstaat"  that,  as  an  ideal,  is 
gaining  the  support  of  many  intelligent  socialistic  leaders.^ 
It  appears  in  Bernstein's  opposition  to  the  theory  of 
catastrophe,  as  also  in  Kautsky.     "Whether  it  will  be 

1  In  the  year  1880  the  word  "legal"  was  canceled  from  the 
Program  of  1875.  "Proceeding  upon  these  principles  the  social- 
istic labor  party  of  Germany  aims  to  establish  a  free  State  and  a 
socialistic  society  by  means  of  legal  measures."  The  striking  out 
of  this  word  assumed  the  importance  of  a  political  demonstration, 
of  a  protest  against  the  socialist  laws.  (1878-1890.)  In  contrast, 
later  proceedings  of  the  party  (Dresden  1904)  clearly  demonstrated 
that  social  democracy  was  rapidly  becoming  an  efficient  radical 
labor  party  on  the  basis  of  the  present  governmental  and  economic 
order,  with  slight  consideration  of  an  ideal  future  State.  It  is  not 
surprising  that  in  so  large  a  party  there  should  be  marked  diver- 
gences among  the  leaders  —  a  more  radical  (Marxian)  and  a  more 
civic  tendency  favoring  revision.  These  differences  have  less 
practical  importance,  inasmuch  as  the  leaders  of  a  pure  Marxism 
are  influenced  by  considerations  of  party  interest  to  hold  rather 
tenderly  to  the  Marxian  position.  Every  religious  or  political 
party  dealing  with  large  masses  of  the  people  presents  this  tendency 
towards  dogmatism.  For  the  masses  want  simple  slogans  ("Schlag- 
wörle")  which  they  can  use  and  do  not  easily  relinquisli.  But  it 
would  be  unfortunate,  particularly  in  the  interests  of  labor,  to  have 
social  democracy  become  catliolic. 


§3S]  GERMAN  SOCIALISM  283 

possible  to  win  the  peasantry  to  the  ranks  of  social  democ- 
racy by  advocating  such  an  agragian  policy  may  be 
doubted.  Social  democracy  will  ever  remain  in  essence 
a  proletarian ,  urban  party ,  —  a  party  of  economic  progress. 
In  the  conservative  farmer,  to  whom  city  life  is  alien, 
and  who  holds  fast  to  the  patriarchal  form  of  family, 
it  will  ever  encounter  a  deeply  rooted  prejudice,  and 
will  never  make  the  same  appeal  as  that  made  by  the 
agrarian  party,  which  not  only  stands  closer  to  his 
interests  but  is  ready  to  promise  larger  advantage." 
A  party  of  three  million  voters  can  obviously  not  be 
expected  to  change  its  political  allegiance  in  a  day. 
But  careful  attention  to  the  views  of  the  leaders  in  the 
socialistic  camp  convinces  me  that  the  withdrawal  from 
revolutionary  trends  in  favor  of  the  interests  of  organ- 
ized labor  is  slowly  but  steadily  gaining.  Social  democ- 
racy has  doubtless  favored  atheism  and  materialism; 
yet  it  deserves  the  credit  of  supplying  the  masses  with 
an  idealistic  basis  for  their  reflection  and  action;  like- 
wise is  it  to  be  remembered  that  nowadays,  quite  irre- 
spectively of  socialism,  atheism  and  materialism  are 
independently  taking  hold  of  large  masses  of  the  people. 
The  great  cultural  importance  cf  social  democracy  lies 
in  its  service  to  the  masses  of  the  laboring  people,  to 
whom  it  gave  an  intellectual  stimulus,  and  whom  it 
elevated  to  a  higher  spiritual  level  through  the  medium 
of  political  agitation.  While  Marx's  "Capital"  forms 
the  cornerstone  of  socialism,  the  communistic  manifesto,^ 

^  The  manifesto  of  the  communistic  party  published  in  February, 
1848,  London,  printed  in  the  ofifice  of  the  Comminists'  League.  Its 
motto  is  "Proletarians  of  all  countries  unite." 

The  manifesto  begins  with  these  words:  "A  specter  is  hovering 
over  Europe,  the  specter  of  communism!"  The  emphasis  of  the 
document  is  placed  upon  the  fact  that  the  history  of  all  previous 
society  has  been  the  history  of  class  conflicts  (p.  3),  and  that  all 
previous  society  has  been  organized  on  the  basis  of  the  opposition 


284  ECONOMIC   REALISM  [Ch.  VI 

which  he  issued  jointly  with  Engel  in  February,  1848, 
is  far  more  significant  for  the  emancipation  of  the  fourth 
estate  and  for  the  cultural  development  of  modern 
times.  This  manifesto  was  the  general  alarum  which 
awakened  the  dispossessed  — •  the  slaves  oppressed  under 
the  yoke  of  the  capitalists  —  to  a  self-consciousness, 
to  a  class-consciousness,  to  a  conscious  solidarity.  "Let 
the  ruling  classes  tremble  in  view  of  the  impending 
communist  revolution.  Theworkingclasseshavenothing 
to  lose  but  their  chains.  They  have  a  world  to  win. 
Workingmen  of  all  countries,  unite!"  ^  This  appeal, 
which  forms  the  closing  words  of  the  manifesto,  brought 
into  being  the  present  German  socialism.  It  contains 
the  philosophical  basis  of  the  cultural  movement  which 
socialism  introduced,  the  goal  of  which  has  now  been 
reached  —  the  emancipation  of  the  fourth  estate. 

Herewith  the  series  of  the  great  recent  movements 
for  emancipation  is  completed.  Since  the  close  of  the 
Middle  Ages  the  watchword  of  the  philosophy  of  law 
and  economics  has  been  "freedom."  In  earlier  days  the 
intellect  was  set  free  from  the  ban  of  the  Catholic  Church 
through  the  heroic  efforts  of  Luther.  Grotius  released 
the  law  from  its  scholastic  fetters ;  he  brought  rationalism 
to  earth,  and  his  contract  theory  contains  the  germ  of 
the  idea  of  popular  sovereignty.  In  the  same  temper 
the  "Tyrannomachs"  led  the  fight  against  tyranny.  In 
these  efforts  it  was  at  times  forgotten  that  freedom 
represents  a  cultural  ideal  and  does  not  consist  in  the 
com])lete  independence  of  all  conditions,  but  in  throw- 

of  the  oppressors  and  the  oppressed  (p.  10).  "When  capital  shall 
have  been  transformed  into  a  capital  that  belongs  in  common  to 
all  numbers  of  society,  it  docs  not  follow  that  personal  property 
will  have  been  transformed  into  social  property.  It  is  only  the 
s(K  ial  character  of  the  possession  that  is  dumged;  it  loses  its  class 
character"  (p.  12). 
»  "Manifesto,"  p.  2;i. 


5  38]  GERMAN  SOCIALISM  285 

ing  off  the  yoke  of  slavery;  license  was  mistaken  for 
liberty.  Such  an  extreme  and  extravagant  conception 
of  freedom  assumed  equality  as  a  rightful  demand  on 
the  basis  of  "natural  law";  and  by  way  of  Rousseau's 
"Discours"  and  the  destructive  philosophy  of  the  En- 
cyclopedists, it  led  to  the  French  Revolution.  The 
aftermath  of  the  Revolution,  supported  by  the  ethical 
philosophy  of  Wolff,  brought  about  an  enlightened  abso- 
lutism. But  the  people,  released  from  their  fetters,  ex- 
changed them  for  leading  strings.  It  was  through  Kant 
that  the  citizen  was  made  to  realize  his  right  to  freedom 
and  equality;  the  great  revolutionary  philosopher  was 
more  radical  than  the  provincial  Robespierre.  The 
latter  was  an  extremest  in  action,  but  Kant  was  an 
extremist  in  thought.  The  issue  of  the  French  Revolu- 
tion, as  affecting  freedom  and  equality,  was  destructive, 
nihilistic;  Kant's  philosophy  was  comprehensively  syn- 
thetic. He  erected  a  splendid  edifice  for  freedom  and 
equality  —  the  "Rechtsstaat";  and  its  economic  com- 
plement was  contributed  by  the  physiocrats  and  by 
Adam  Smith.  With  these  advances  the  process  of  eman- 
cipation, which  brought  law  and  government  out  of 
the  bondage  of  the  mediaeval  Church  to  the  freedom 
of  the  modern  world,  would  have  been  completed 
if  it  were  the  fact — as  rationalism  had  naifvely  assumed 
in  the  theory  of  contract  —  that  the  law  was  an  inde- 
pendent institution.  But  the  law  is  not  something 
fixed,  unalterable,  and  absolute;  it  is  flexible  and  subject 
to  change,  as  was  recognized  by  Schelling  and  Hegel. 
The  study  of  its  fluctuations,  which  condition  legal 
advance  and  legislative  reforms,  led  to  the  science  of 
economics.  In  Marx  and  Lassalle  a  period  of  economic 
materialism  set  in,  and  a  new  emancipation  became 
necessary,  because  a  new  class  had  been  awakened  to 
a  class-consciousness. 


286  ECONOMIC  R^.ALISM  [Ch.  VI 

The  emancipation  at  the  close  of  the  Midule  Ages  and 
at  the  beginning  of  modern  times  was  directed  by  tem- 
poral interests  against  the  spiritual  aggrandisement  of 
the  popes  and  their  subordinates.  The  emancipation 
of  the  legal  philosophers,  from  the  "Tyrannomachs"  to 
Kant,  was  centered  upon  the  people.  But  the  people, 
the  subjects,  the  ruled  classes,  were,  or  appeared  to  be, 
the  citizens  in  the  cities,  and  the  independent  farmers 
in  tlie  rural  districts.  The  oppressors  were  the  lords, 
the  rulers,  the  ruling  classes,  together  with  the  aristoc- 
racy of  the  feudal  system.  In  the  Kantian  movement 
the  people  gained  their  freedom.  But  it  appeared  that 
such  freedom  was  for  the  benefit  only  of  the  citizen 
class,  • —  the  property  owners,  the  capitalists.  The  free- 
dom and  equality  which  the  law  guaranteed  were  legally 
and  formally  for  the  benefit  of  all,  but  actually  and 
economically  existed  only  for  th.«  property-owning 
classes.  This  disparity  between  formal  legal  freedom 
and  economic  enslavement  became  evident  through  the 
spread  of  a  new  form  of  production,  that  of  machine 
labor.  There  thus  arose  a  new  great  class  which  was 
enslaved  by  the  very  medium  of  the  law  itself,  which 
was  exploited  by  the  class  of  citizens  who  themselves 
had  just  attained  their  own  free  development.  There 
became  necessary  a  st  ill  newer  and  last  process  of  eman- 
cipation through  economic  measures. 

Reviewing  this  order,  there  appeared,  in  succession, 
temporal  freedom  as  against  ecclesiastical  bondage;  tlie 
freed<jm  of  legal  government  as  against  tyrannical  rule; 
the  freedom  of  private  law  as  against  the  economic 
enslavement  of  the  citizen  and  the  peasant;  economic 
freedom  as  against  the  abuse  of  the  ca])italistic  power 
of  the  middle  class:  thus  the  circle  of  the  great  enianci- 
j)ati(Mi  was  coni])lete(l.  'Ilie  process  of  emancipation 
of  ancient    da>s    was    concluded    by    tiie    formal    legal 


§30]  ANARCHISM  287 

moralization  of  private  rights;  the  process  of  emanci- 
pation of  modern  times  by  their  material  and  economic 
sociaHzation. 

§39.  Anarchism.  1:  Proudhon;  the  Older  View. 
The  position  of  anarchism  is  variously  presented  by 
its  adherents.  Their  common  points  may  be  said  to 
include  the  unconditional  opposition  to  the  State,  to 
all  authority  and  coercion,  and  a  like  opposition  to 
capital,  tlie  presence  of  which  makes  the  equal  consid- 
eration of  all  a  myth.^  Their  common,  though  negative 
purpose,  is  the  abolition,  indeed  the  destruction  of  gov- 
ernment and  of  governmental  control  and  authority. 
The  second  part  of  their  program  is  to  work  for  this 
end  by  th.e  use  of  violence,  inasmuch  as  at  present  those 
in  authority  will  not  yield  peaceably.  The  anarchists 
are  divided  into  two  chief  camps  on  the  issue  of  the  end 
to  which  endeavor  is  to  be  directed,  and  of  the  means 
to  be  employed  in  reaching  it. 

Yet  if  all  compulsory  enforcement  is  abolished,  and 
if  society  is  freed  from  capital,  what  then?    What  shall 

^  "According  to  the  expression  of  an  influential  capitalist  interested 
in  the  distribution  of  justice,  the  important  point  is  to  equalize 
opportunity  for  all  who  have  to  face  the  chances  of  life."  (Elisce 
Recliis,  "L'evolution,  la  revolution  et  Tideal  anarchique,"  third 
edition,  Paris  1898.  "Bibliotheque  Sociologique,"  No.  19,  p.  121.) 
The  supreme  power  of  capital  is  emphasized  by  anarchists  on  all 
sides.  {Reclus,  "L'evolution,"  etc.,  pp.  85-90,  201.  "Money  in 
the  present  state  of  society  is  the  open  sesame"  {Grave,  "La  Societe 
Future,"  p.  338).  See  also  Krapotkin,  "La  Conquete  du  Pain," 
pp.  47  63,  93.  Capital  is  the  chief  cause  of  crime.  (Grave,  "La 
Societe  Future,"  pp.  13S-142.)  Mackay,  "Die  Anarchisten,"  p.  267, 
says  that  "it  may  be  shown  that  the  crimes  of  the  State  produce 
crime."  The  argument  in  regard  to  the  exploitation  of  the  labor- 
ing classes  on  the  part  of  the  citizens,  used  by  the  socialisits,  is  often 
advanced  by  the  anarchists.  {Crave,  "La  Societe  Future,"  p.  24,  "The 
citizen  class  has  become  parasitic;  it  lives  at  the  expense  of  those 
who  are  busy  at  work,  and  is  itself  losing  the  power  to  produce." 


288  ECONOMIC  REALISM  [Ch.  VI 

be  put  in  their  place?  Here  opinions  diverge.  The  older 
tr^nd  is  in  the  main  represented  by  Proudhon  (1809- 
1865).  In  the  name  of  justice^  he  discards  law,  govern- 
ment,^ and  property  —  the  last  by  reason  of  its  irra- 
tional and  disturbing  consequences.^  For  all  he  sub- 
stitutes anarchy,*  which  is  based  upon  the  only  valid 
law,^  namely,  that  contracts  must  be  kept.^  Herein 
appears  the  influence  of  the  doctrine  of  "natural  law." 
His  brilliant  and  eloquent  presentations,  his  pertinent 
definitions  and  arguments,  found  favor,  particularly  as 
his  views  were  flattering  to  the  spirit  of  the  times.  His 
definition  of  business  appealed  directly  to  the  masses, 
envious  of  the  possessions  of  others.  "The  definition 
of  business  is  familiar;  it  is  the  art  of  buying  at  three 
francs  what  is  worth  six,  and  of  selling  at  six  francs  what 
is  worth  three."     The  universal  acceptance  of  Proud- 

^  "De  la  Justice,"  I,  pp.  182-185,  new  edition,  second  essay,  pp. 
86-91.  p.  87:  "Justice  is  the  respect  of  human  worth  spontaneously 
exercised  and  mutually  guaranteed  for  every  person  and  for  every 
situation  and  at  whatever  risk  its  defense  entails."  "Idee  Generale," 
pp.  235,  342,  343. 

2  "Qu'cst-ce  que  la  Propriete,"  I,  pp.  239-245  (p.  240):  "A  king- 
dom may  be  good  when  it  is  the  only  possible  form  of  government, 
but  it  never  can  be  legitimate."  (p.  242):  "The  authority  of  man 
over  man  is  in  inverse  ratio  to  his  intellectual  development."  See 
in  this  connection,  "De  la  Justice,"  new  edition,  I,  fourih  essay, 
pp.  13,  18,  108-110,  111-128,  134  143. 

'  "Qu'est-ce  que  la  Propriete?"  I,  pp.  129-193. 

*  "Qu'est-ce  que  la  Propriete?"  I,  p.  237.  "I  am  an  anarchist." 
(p.  242):  "Anarchy,  the  absence  of  a  master,  of  a  sovereign,  this 
is  the  form  of  government  which  we  are  approaching  day  by  day." 

"  Idee  Generale,"  pi).  149  .scci.,  235. 

'"Idee  Generale,"  pp.  343,  235:  "In  order  that  I  may  remain 
free  there  must  be  eliminated  all  that  remains  of  tiie  divine  in  the 
government  of  society,  and  the  structure  must  be  rebuilt  upon  the 
human  idea  of  contract."  Proudhon  has  in  mind  Rousseau,  who, 
however,  was  not  consistent  in  the  development  of  liis  thought. 


§39]  ANARCHISM  289 

hon's  phrase  —  though  the  idea  is  not  originally  his  — 
that  property  is  theft  ^  is  a  telling  example  of  the  carry- 
ing power  of  neat  phrases. 

The  older  anarchism,  beginning  with  Proudhon  and 
including  Bakunin,  is  but  partly  communistic  or  collec- 
tivistic.  In  contrast  to  the  newer,  thoroughly  communis- 
tic anarchism,  it  is  individualistic:  that  is,  property 
as  income,  as  possession,  or  as  conferring  advantage, 
is  rejected;  but  property  as  ownership  is  retained 
and  made  accessible  to  all,  though  not  under  the  legal 
title  of  ownership,  but  under  the  terms  of  a  party  to  a 
contract.'^ 

2:  Stirner:  Extreme  Individualism.  Max  Stirner 
(1806-1856),  a  pseudonym  for  Kaspar  Schmidt,  is  an  in- 
dividualist maintaining  that  everyone  should  stand  on 
his  own  footing.  He  carries  his  individualistic  views 
consistently  to  the  extreme,  and  represents  the  purely 
atomistic  position.  The  individual  exists  for  his  own 
sake  alone;  he  must  express  his  own  activity,  be  allowed 
to  live  his  individual  life;  he  must  be  his  own  master, 
a  State  in  himself,  a  man  of  nature.  Stirner  accepted 
and  developed  in  an  original  manner  the  doctrine  of 

1  "Qu'est-ce  que  la  Propriete?"  I,  p.  233;   pp.  2,  229-234. 

^  Adler,  "Nord  und  Süd,"  p.  372;  Zenker,  "Der  Anarchismus," 
pp.  26,  41,  and  others  take  the  position  that  Proudhon  did  not  un- 
conditionally reject  property.  Eltzbacher,  "Der  Anarchismus," 
p.  70,  opposes  this  view:  "He  (Proudhon)  rejects  property  uncon- 
ditionally without  restriction  of  space  or  time.  Indeed  he  looks 
upon  it  as  a  legal  relation  which  is  peculiarly  adverse  to  justice." 
The  entire  content  of  "Qu'est-ce  que  la  Propriete?"  seems  to  support 
Eltzbacher  in  this  contention;  for  this  work  is  a  constant 
tirade  against  property.  Eltzbacher  is  however  not  correct  in  so  far  as 
Proudhon  did  not  carry  to  its  extreme  consequences  this  antagonism 
to  property.  He  rejects  property,  but  reintroduces  it  in  his 
anarchical  sj'stem  under  another  term.  His  private  property 
becomes  a  share  in  the  social  goods  in  a  contractual  society.  This 
is  not  property  by  name,  but  is  so  for  all  intents  and  purposes. 


290  ECONOMIC   REALISM  [Ch.  VI 

personal  and  economic  freedom  advanced  by  Adam 
Smith  and  Ricardo.  He  called  attention  to  the  fact 
that  freedom  is  but  a  negative  quality,  the  release  from 
bondage,  the  removal  of  restraint.  To  supply  a  positive 
ideal,  Stirner  accepted  the  formula:  "Be  your  own  mas- 
ter, live  for  yourself,  in  accord  with  your  own  individual- 
ity." ^     Dispensing  with  its  anarchistic  setting,  Nietzsche 

1  The  unusual  emphasis  of  individuality  and  of  individual  free- 
dom, which  it  is  held  that  the  State  and  the  present  social  order 
suppress,  forms  an  important  argument  of  the  anarchists,  including 
those  belonging  to  the  communist  group.  Thus  Grave,  "La  Societe 
Future,"  p.  155:  "But  if  the  individual  is  compelled  to  live  in  society 
it  must  not  be  hastily  concluded  that  he  must  sacrifice  himself  in 
such  association";  or  again,  p.  157:  "For  the  anarchist,  society 
has  a  reason  to  exist  and  develop  only  if  it  brings  about  an  improved 
condition  for  man  considered  individually  as  well  as  collectively; 
if  it  contributes  to  his  advancement  and  permits  a  larger  extension 
of  his  powers  without  demanding  any  restrictions  unfavorable  to 
his  personality  other  than  such  as  already  exist  by  virtue  of  the 
natural  conditions  of  existence  in  the  environment  in  which  he  finds 
himself." 

Again,  p.  166:  "Hence  society  has  no  reason  to  exist  except  upon 
condition  that  those  who  form  part  of  it  find  therein  a  greater  devel- 
opment of  their  welfare  and  self-expression."  See  also  Rectus,  "L'evo- 
lution,"  etc.,  p.  121:  "We  claim  everything,  all  that  is  possible  to 
the  development  of  our  powers  and  our  physical  health  in  their 
fullest  expression." 

Mackay:  "Die  Anarchisten,"  p.  2S6:  "The  freedom  of  labor  once 
achieved  by  the  abolition  of  the  State,  which  will  then  no  longer 
monopolize  money,  paralyze  credit,  withdraw  capital,  check  the 
circulation  of  goods,  or  in  brief,  shall  no  longer  be  able  to  control 
the  affairs  of  the  individual- — ^  when  once  this  shall  have  become  a 
fact,  the  sun  of  anarchy  will  have  arisen";  and  again,  p.  281:  "All 
forms  of  slavery  had  to  be  experienced.  Peoples  ever  struggled  in 
search  of  freedom,  but  found  in  every  change  the  same  lack  of  free- 
dom. At  last  the  truth  was  found  that  all  outer  forms  involving 
coercion  were  lo  be  rejected.    Force  began  to  decline." 

The  anarchistic  dream  of  freedom  is  clearly  set  forth  by  Mackay, 
"Die  Anarchisten,"  j).  122:  "A  condition  of  equal  opportunity, 
for    every    free,    independent,    .sovereign    individual  —  whose    sole 


§39]  ANARCHISM  291 

developed  this  extreme  individualistic  doctrine  into 
the  will   to  prevail, — "Wille  zur  Macht." 

3:  Krapotkin:  THE  Communistic  View.  The  counter- 
part of  individualistic  anarchism  is  to  be  found  in 
communistic  anarchism,  which  is  advocated  by  the  Rus- 
sian Prince,  Peter  Krapotkin  (b.  1842).  Considering 
that  the  individual  man  is  powerless  and  helpless  in 
the  face  of  natural  forces,  it  is  evident  that  he  needs 
social  co-operation  ^  to  maintain  himself,   yet  under  the 

demand  upon  society  consists  in  claiming  respect  for  his  freedom, 
and  whose  sole  self-imposed  law  is  the  respect  for  the  freedom  of 
others  —  such  is  the  ideal  of  anarchy."  Crave  (as  above,  p.  306): 
"But  if  man  cannot  live  in  isolation,  if  he  cannot  overcome  the  ob- 
stacles imposed  by  the  precarious  conditions  of  existence  in  which 
he  finds  himself,  it  is  clear  that  such  association,  if  it  is  to  endure, 
must  be  based  upon  the  condition  of  perfect  equality  among  the 
contracting  parties";  and  again  (p.  400):  "But  we  have  also  such 
a  thirst  for  justice  and  liberty  that  we  desire  a  society  without 
judges,  governors,  and  all  those  parasites  that  constitute  the  mon- 
strous social  organism  with  which  humanity  has  been  afflicted  since 
the  beginning  of  history."  Upon  the  individualistic  anarchism  as 
opposed  to  communistic  socialism,  see  Mackay,  "Die  Anarchisten," 
pp.  109-142. 

^  The  communistic  tendency  is  at  present  dominant.  See  Crave, 
''La  Societe  Future,"  VII  edit.,  Paris  1895  (''Bibliotheque  Sociolo- 
gique,  No.  8),  p.  147:  "The  anarchists  know  that  man  cannot  live  in 
isolation;  they  know  that  he  must  combine  forces  in  order  to  obtain 
the  maximum  benefit;  it  is  for  this  reason  that  they  desire  a  society 
based  upon  solidarity  and  not  upon  conflict."  Again,  p.  149:  "The 
purpose  of  the  social  state  is  to  enable  man  to  disengage  himself 
from  natural  obstacles,  is  a  means  of  extending  the  field  of  his  activ- 
ity, of  developing  his  self-expression,  of  decidedly  increasing  his 
strength  in  overcoming  difficulties."  (p.  155):  "Association  is  thus 
a  human  necessity.  It  is  one  of  the  indispensable  conditions  of 
man's  intellectual  development."  (p.  166):  "Hence  society  has 
no  reason  to  exist  except  upon  condition  that  those  who  form  part 
of  it  find  therein  a  greater  development  for  their  welfare  and  self- 
expression."  See  also  Krapotkin,  "La  Conquete  du  Pain,"  pp.  21- 
29,  31-45. 


292  ECONOMIC  REALISM  [Ch.  VI 

condition  of  retaining  his  personal  freedom.  "Free- 
dom is  the  absence  of  aggressive  force  or  coercion." 
"The  State  is  the  power  of  might  organized;  its  nature 
is  violence  and  its  privilege  is  robbery ;  its  maintenance 
is  due  to  the  robbing  of  one  for  the  benefit  of  another."^ 

Communistic  anarchism  and  communistic  socialism 
are  closely  related.  It  may  be  said  that  the  two  coin- 
cide economically  and  diverge  politically.  The  anar- 
chists provide  a  freer  position  of  the  individual  as  against 
the  community,  the  communists  desire  organization 
without  rule,  without  force,  - — -organization,  but  not  au- 
thority.^ The  communistic  anarchists  maintain  that 
communism  will  lead  to  the  prosperity  of  the 
community.^ 

4:  Bakunin:  the  Position  of  Violence.  The  anar- 
chists are  agreed  that  only  violence  can  lead  to  their 

^  Mackay,  "Die  Anarchisten,"  p.  111. 

^Crave,  "La  Societe  Future,"  pp.  201-211.  (p.  201):  "What  we 
understand  by  organization  is  the  relation  that  comes  to  obtain 
between  individuals  associated  in  a  common  work  in  virtue  of  their 
interests;  it  is  the  mutual  relations  that  arise  from  daily  contact 
which  all  the  members  of  a  society  are  forced  to  have  with  one  an- 
other." See  also  Krapotkin,  "La  Conqu^te  du  Pain,"  pp.  31^5, 
213-234.  (Does  not  this  assume  that  harmony  can  ensue  without 
the  dominion  of  authority?) 

^Crave,  "Lei  Societe  Future,  pp.  51-.56.  p.  51:  "True  wealth  is  the 
most  perfect  adaptation  of  the  world  to  our  needs."  (p.  53): 
"There  are  in  Europe  immense  territories  unproductive  by  reason 
of  the  aridity  of  the  soil,  and  on  the  other  hand  rivers  carrying  to 
the  sea  not  alone  millions  of  cubic  metres  of  water,  but  also  fertil- 
izing deposits  taken  from  the  soil  in  their  course  and  encumbering 
navigation  at  their  outlets." 

Krapotkin,  "La  Concpiete  du  Pain,"  preface  by  Rcchis,'p.  vii: 
"The  forces  at  our  disposal  should  be  applied  not  to  useless  or  inef- 
fective works  but  to  the  production  of  everything  that  is  necessary 
to  feed  men,  for  their  housing  and  use  and  comfort,  and  to  the  study 
of  the  .sciences,  and  the  cull  i\  at  ion  of  the  arts."  See  also  Krapot- 
kin, "La  ConcjuCte  du  I'.iiii,  pp.   17  scq. 


§39]  ANARCHISM  293 

desired  goal;^  but  as  to  how  this  violence  is  to  be  exer- 
cised, opinions  differ.  The  scientific  group,  the  theoret- 
ical socialists,  advocate  an  international  revolution  as 
the  radical  solution  without  giving  much  thought  as  to 
how  and  when  and  where  this  revolution  is  to  occur. 
This  group  is  represented  in  the  officially  circulated 
literature  of  anarchism.  The  other  party  constitutes  the 
"propagandists  of  action,"  the  "terrorists,"  who,  by 
intimidation  and  attacks  upon  crowned  heads  or  other 

^Elisee  Rechts,  "L'evolution,  la  revolution  ct  I'ideal  anarchique," 
pp.  147-154,  argues  against  those  who  optimistically  "hope  that 
everything  will  come  about  by  itself,"  that  capital  will  yield  only  to 
force,  that  it  spoils  the  character,  that  whoe\er  comes  into  money 
or  power  realizes  his  authority.  In  concluding  Reclus  says  (p.  289): 
"Let  us  not  be  self-deceived.  We  know  that  the  final  victory  will 
cost  much  blood,  labor,  and  suffering.  The  international  organiza- 
tion of  the  oppressed  will  be  counteracted  by  a  similar  organization 
of  the  oppressors." 

Similarly  Grave,  "La.  Societe  Future,"  p.  85:  "Revolution  will  be 
inevitable,  for  the  privileged  classes  will  never  abdicate  of  their  own 
accord."  Again,  p.  11.3:  "There  is  a  fatal  stage  to  cross."  That 
revolution  can  be  effective  only  if  it  be  international  is  emphasized 
by  Crave,  "La  Societe  Future,"  pp.  61-70. 

The  necessity  of  expropriation  by  revolution  is  urged  by  Krapot- 
kin,  "LaConquetedu  Pain,"  pp.  21-26;  see  also  the  Preface  by  Reclus. 
(pp.  21  seq.):  "But  this  problem  will  never  be  solved  by  way  of 
legislation;  that  is  an  idle  dream.  There  has  been  an  evolution 
brought  about  in  the  mental  attitude  in  the  course  of  the  last  half 
century  but  it  has  been  checked  by  the  minority,  that  is,  by  the 
dominant  classes;  and  having  no  outward  embodiment,  it  must 
remove  obstacles  by  force  and  establish  itself  by  the  violence  of 
revolution."  Godwin  (see  above,  §  30)  is  not  an  advocate  of  force; 
and  Tucker  (see  below)  rejects  the  use  of  force  for  reasons  of  political 
policy. 

Even  women  must  take  part  in  the  revolution.  "For  the  woman 
of  the  proletariat,  legal  marriage  affords  but  illusory  guaranties 
against  the  man  who  wishes  to  desert  her  and  her  children.  The 
woman  of  the  proletariat,  like  the  laborer,  can  become  free  only  by 
social  revolution."     Crave,  "La  Societe  Future,"  pp.  338  seq. 


294  ECONOMIC   REALISM  [Ch.  VI 

conspicuous  figures  in  government  and  society,  wish 
to  force  a  change  of  social  condition  in  accord  with  the 
anarchistic  plans.  The  former  advocate  war,  but  the 
latter  practise  a  guerilla  warfare;  the  one  present  a 
program,    the   other   deeds. ^ 

Of  considerable  importance  in  the  anarchistic  move- 
ment, and  particularly  for  the  advocates  of  action,  is 
the  principle  of  agitation.  Among  the  anarchistic  agita- 
tors Bakunin^  (1814-1876)  is  most  promiment. 

Many  anarchists  are  moved  by  an  emotional  philan- 
thropy, a  deep  sympathy  with  the  distress  and  poverty 
under  which  large  numbers  suffer.  Such  conditions  as 
obtain  in  the  poorest  London  slums,  with  their  squalor 
and  degradation,  are  painted  in  lurid  colors,  and  are 
regarded  as  standard,  with  the  direct  implication  that 
society  and  government  are  responsible^  for  them.  Like 
the  socialists,  the  anarchists  would  like  to  banish  pov- 
erty  and   misery   from   the  world*  and   yet    guarantee 

^  The  majority  of  theorists  seem,  however,  favorably  disposed 
towards  the  terrorists.  Crave,  "La  Societe  Future,"  pp.  393  seq.: 
"Force  appeals  to  force,  terror  brings  forth  terror.  It  is  not  for  us 
to  judge  those  who  agitate,  many  of  whom  pay  by  their  life  and 
their  liberty  for  their  errors,  if  they  are  in  the  wrong."  See  also 
Mackay,  "Die  Anarchisten,"  pp.  185-215,  on  the  trial  of  the 
anarchists  in  Chicago. 

2  On  Bakunin  sec  Zenker,  "Die  Anarchisten,"  pp.  100-110.  Eltz- 
bacher,  "Die  Anarchisten,"  pp.  102-124.  Ludivig  Stein,  "Die  soziale 
Frage  im  Lichte  der  Philosophie,"  pp.  392  seq.  \V.  Ed.  Biermann, 
"Staat  und  Wirthschaft,"  I,  p.  102. 

^  Mackay,  "Die  Ananhislm,"  i)p.   M3-1S4,  245-262. 

*  This  idea  constanlly  recins  in  the  projects  of  communistic 
writers,  particularly  xwGrave,  "La  Scxiete  Future."  See  the  above 
citations  from  this  work.  See  also  Krapotkin,  "La  Conquele  du 
I'ain,"  in  general,  and  the  Preface  by  Reclus,  pp.  vi  seq.:  "The 
title  of  the  work,  'La  Conquctc  du  Pain,'  should  be  understood  in  the 
largest  sense;  for  man  does  not  li\e  by  bread  alone.  We  must  be 
able  toassure  to  all  a  complete  satisfaction  of  llieir  needs  and  enjoy- 


§39]  ANARCHISM  295 

freedom  of  conduct,  a  good  income,  and  a  maximum  of 
happiness.  If  the  anarchistic  program  were  to  be  real- 
ized, the  result  would  be  a  retrogression  from  the  present 
liigh  stage  of  culture  to  a  much  lower  one.  The  influences 
of  culture  would  be  paralyzed  and  deprived  of  their 
sphere  of  operation.  It  would  result  in  the  worst  form 
of  demagogic  rule,  an  appeal  to  the  ineradicable  vanity 
of  men,  in  a  futile  rivalry  for  popular  favor.  No  less 
deceptive  are  the  measures  that  anarchy  advocates. 
The  baseness  of  a  terrorism  that,  to  establish  its  con- 
ception of  humanity  and  the  recognition  of  individuality, 
proceeds  forcibly  to  destroy  innocent  individuals,  hardly 
needs  proof.  Such  vagaries  of  a  morl)id  imagination 
correct  themselves.  The  plea  for  a  general  international 
revolution  amounts  to  massacre  —  and  that  not,  as  at 
present,  restricted  to  a  few  conspicuous  individuals. 

It  is  a  vain  attempt  of  Reclus  to  divest  the  idea  of 
revolution  from  its  inherent  terrors,  and  its  accompany- 
ing horrors,  by  explaining  that  revolution  is  but  an  evo- 
lution on  a  large  scale, ^  and  differs  from  the  latter  only 
in  the  degree  of  evolutionary  change.  But  the  quanti- 
tative difference,  here  as  elsewhere,  conditions  the 
qualitative  one."  One  might  just  as  well  say  that  the 
crop-destroying  hail  or  the  destructive  cloudburst  is  but 
quantitatively  different  from  a  fruitful  rain.  Evolution 
is  the  unfoldment  of  energy, — is  life;  revolution  is  the 
destruction  of  energy, — is  death.     Finally,  with  reference 

ments."  On  p.  xiv  is  considered  the  reawakening  of  "a  natural 
friendliness  among  men,"  "when  there  will  be  neither  rich  nor  poor." 
See  also  pp.  15-29:  "I^'aisance  pour  tons";  as  well  as  the  ideals 
of  the  future  considered  from  p.  65  to  the  end  of  the  volume. 

^  "L'evolution,  la  revolution  et  I'ideal  anarchique,"  pp.  3-5, 
14-19.  Also  Grave,  "La  Societe  Future,"  inclines  to  minimize  the 
importance  of  revolution,  and  notes  that  "social  revolution  pro- 
ceeds by  evolution." 

-  Berolzheinier,  "System,"  Vol.  I,  pp.  216-221. 


29Ü  ECONOMIC   REALISM  [Ch.  VI 

to  its  philosophical  appreciation,  it  is  not  the  conse- 
quence to  which  anarchism  leads  that  is  decisive,  but 
the  faultiness  of  its  theoretical  foundation.  Anarchism 
proceeds  upon  a  false  conception  of  freedom.  Freedom 
has  been  the  purpose  and  goal  of  civilization  for  the 
last  two  thousand  years.  But  the  freedom  thus  sought, 
and  at  present  substantially  attained,  is  the  emancipa- 
tion from  every  type  of  slavery  and  oppression  on  the 
part  of  the  State  and  the  law.  And  the  means  whereby 
freedom  has  been  secured  is  the  legal  absorption  of  the 
ethical  principle,  the  recognition  of  the  conception  of 
humanity,  the  moralization  of  the  law. 

As  against  this  result,  the  anarchists  propose  an  abso- 
lute conception  of  freedom  under  which  everyone  shall 
be  subject  only  to  his  own  will;  and  in  consistent  pur- 
suit of  this  idea,  they  naturally  reject  every  form 
of  coercion,  of  authority,  of  subjection.^  As,  however, 
the  radical  and  absolute  execution  of  this  idea  would 
lead  the  undisciplined  will  to  reject  all  culture,  and  to 
the  deterioration  of  humanity,  —  for  anarchism,  if 
consistent,  would  likewise  abolish  education,  —  the 
anarchist  leaders,  with  the  exception  of  Stirner,  take 
refuge  in  some  form  of  association  which  they  term 
society,  but  which  in  reality  would  be  tantamount  to 
the  dominance  of  the  people, —  a  society  that  rejects 
all  authority  of  the  State  and  through  the  State,  and 
replaces  it    by   mob   niU-.-      The   anarchists  take  their 

^" Proudhou,  "Qu'esl-re  que  la  Propriete?"  I,  p.  244:  "The  land- 
holder, the  thief,  the  hero,  the  sovereign  —  for  these  all  mean  the 
same  thing  —  imposes  his  will  as  law,  and  suffers  no  contradiction 
or  check."      (The  italics  are  mine.) 

^/.«(/ui/g  .SV<'/H  gives  a  pertinent  refutation  of  anarcliisni  in  his  essay 
"De  I-'autorite"  (sec  above),  wherein  he  shows  that  governmental 
control  is  an  absolute  necessity  for  bringing  people  to  a  state  of 
civilizal  ion,  and  indccil  ri|)ns(iils  the  chief  condition  of  culture. 
Thus  on  ]).  7:    "Aulhority  is  (lie  iiidis|)ensable  school  of  the  human 


§39}  ANARCHISM  297 

position  upon  the  princij^le  of  pure  might:  Might  is 
right. ^  If  this  holds,  then  the  present  wielders  of  au- 
thority might  consistently  resolve  upon  the  forcible 
suppression  of  anarchistic  agitation  and  expression,  and 
their  complete  annihilation  and  destruction. 

5:  Tucker  and  Tolstoi;  Moderate  Anarchism. 
Tucker  2  turns  anarchism  away  from  the  position 
of  self-assertion  and  utilitarianism.  Nominally  the  law 
is  to  remain,  but  it  is  to  be  made  so  plastic  that  the  courts, 
somewhat  after  the  manner  of  the  Roman  praetor,  will 
decide  upon  the  applicability  or  inappropriateness  of 
the  law  in  concrete  cases,  according  to  the  principle  of 
justice.  The  anarchistic  order  of  society  is  to  be 
brought  about  by  refusal  of  compliance,  by  passive  resis- 
tance to  the  governmental  laws  on  the  part  of  those 
convinced  of  the  truth  of  the  new  doctrine.  Tucker 
does  not  reject  terrorism  in  i)rinciplc,  but  disavows  it 
through  considerations  of  ]irudcnce. 

The   Russian   Count,    Leo  Tolstoi    (1828-1910),    by 

race."  (p.  8):  "The  forms  under  which  authority  is  exercised 
among  a  people  become  refined  and  perfected  in  direct  ratio  to 
their  progress  in  civiHzation."  (p.  14):  "On  the  other  hand  we 
are  forced  to  conchide  that  races  that  persist  in  their  primitive 
anarchy  are  incapable  of  civilization,  (p.  17):  "The  most  solid 
reason  for  the  necessity  of  authority  is  the  evidence  supplied  by 
itself."  (p.  18):  "Authorities  may  change  but  authority  persists," 
pp.  21,  23. 

^  Rectus,  "L'evolution,"  etc.,  p.  206,  puts  the  sentiment,  "Let 
force  rule,"  in  the  mouths  of  the  opponents  of  anarchy,  the  defenders 
of  the  present  regime.  Similarly  Grawe,  "La  Societe  Future,"  p.  42: 
"You  yourselves  have  said  that  victory  belongs  to  the  strong." 
See  also  pp.  2.5^2.  Mackay,  "Die  Anarchisten,"  p.  267:  "It  was 
our  purpose  to  show  that  the  State  was  a  privileged  power  and  that 
force  maintained  it,  that  it  was  the  State  that  converted  the  harmony 
of  nature  into  the  disharmony  of  coercion." 

2  Tucker,  "Instead  of  a  Book,"  pp.  25,  52,  60,  104,  158,  167,  312, 
413.  427.  429. 


298  ECONOMIC   REALISM  [Ch.  VI 

the  trend  of  his  teachings  belongs  to  the  anarchists, 
but  judged  by  the  theoretical  basis  of  his  views  he  must 
be  classed  as  a  social  moralist  with  a  religious  turn. 
His  intense  ethical  and  social  sympathy  and  his  romantic 
impressionism  led  him  to  take  a  stand  against  the  State. 
He  does  not  advocate  the  use  of  violence,  but  of  pas- 
sive resistance  towards  civic  duties.  In  view  of  his  later 
writings  he  has  frequently  been  compared  to  Rousseau. 
The  comparison  is  pertinent  in  so  far  as  both  advocate 
a  return  to  nature;  but  while  Rousseau  as  a  rationalist 
presents  the  state  of  nature  as  desirable,  Tolstoi  accepts 
the  primitive  Christian  religious  attitude,  the  goal  of 
which  is  the  establishment  of  universal  love.  But  Tol- 
stoi, like  Rousseau,  is  saturated  va  ith  the  extreme 
culture  of  his  social  environment.  As  a  whole,  the 
Russian  people  are  not  troubled  by  an  excess  of 
civilization;  and  like  the  rest  of  mankind  they  can 
well  afford  to  strive  for  further  culture.  However 
highly  one  may  estimate  Tolstoi  as  an  author,  Tolstoi 
as  a  social  philosopher  may  be  dismissed  without 
further  notice. 

§  40.  Further  Types  of  Socialism.  1 :  Menger.  Of 
the  writings  of  Anton  Menoer  (b.  1841)  there  are  to  be 
considered,  "Das  Recht  auf  den  vollen  Arbeitsertrag,"' 
"Das  Bürgerliche  Recht  und  die  besitzlosen  Klassen,"  ^ 
and  "Die  neue  Staatslehre."^  In  the  first  Menger  pro- 
poses  "to  consider   the  fundamental  ideas  of  socialism 

'"Das  Rcclit  auf  i\v\\  vollen  Arbeitsertrag?  in  gcscliiciitlicher 
Darsteliiini;,"  Still  ti;;irl  ISSd,  third  edition,  1904.  (I  eite  from  the 
first  edition.) 

'■''riiinl  cdilion,  'riil)ins;('n  ]'.)(V4.  I  cite  from  tiie  original  which 
ai>iir,iicd  ill  I'll  iiin's  "Archix-  für  Soziale  (jesetzgebiing  und  Statis- 
tik," \ol.  II,  Tübingen  ISS'.I,  pp.  1  73,  419-482;  Vol.  Ill,  Tübingen 
1S!)(),  p|..  :ü  71. 

'  I'jrst  edition,   I'JO'J;    .secc^ntl  edition,  Jena  I'JUl. 


MO]  SOCIALISM:  FURTHER  TYPES  299 

Irom  the  legal  side";^  he  presents  the  legal  phases  of 
socialistic  doctrines  historically.-  His  concluding  con- 
sideration proposes  the  question:  "What  is  the  prac- 
tical significance,  for  present-day  movements,  of  the  two 
new  legal  conceptions  which,  in  the  course  of  a  century, 
have  gradually  been  formed  in  the  consciousness  of  the 
great  laboring  classes  —  that  of  the  right  to  the  entire 
proceeds  of  labor,  and  the  right  of  existence?  It  is 
Menger's  view  that  our  social  development  is  gradually 
approaching  the  realization  of  these  deman.ds.  The 
communal  duty  of  providing  for  the  poor  is  an  example, 
though  a  sad  one,  of  a  substitute  for  a  right  to  existence. 
Compulsory  education  guarantees  to  an  extent  the  in- 
tellectual training  of  minors.  In  regard  to  the  riglit  of 
existence,  present  legislation  simply  checks  the  worst 
forms  of  exploitation  of  the  laborer;  and  these,  in  the 
main,  only  as  concerns  the  industrial  laborer.  Accord- 
ing to  Menger  the  realization  of  the  right  to  work,  to 
which  the  prevalent  political  attitude  is  favorably  dis- 
posed, might  appropriately  be  a  first  step  in  the  new 
economic  order  —  a  transition  to  the  socialistic  form  of 
the  State.  Menger  sets  forth  two  legislative  ends  as 
particularly  desirable  and  attainable.  Legislation  should 
take  care  not  to  establish  any  further  forms  of  income 
without  labor,  and  not  to  extend  existing  forms  of  such 
income.  Yet  more  important  is  it  that  legislation  should 
not  forcibly  transfer  the  ground  rent  or  interest  of  capi- 
tal from  one  class  of  the  people  to  another.  As  an  ex- 
ample of  such  measures  may  be  cited  the  redemption 
of  agricultural  mortgages  at  the  cost  of  the  State;  this 
would  constitute  a  fundamental  breach  of  the  law  in 
that  the  ground  rent  which  would  accrue  in  the  cities 
would  be  taken  away  from  them,  and  given  by  the  State 
to  the  landholders. 

^  "Das  Recht  auf  den  vollen  Arbeitsertrag,"  p.  Ill 
2  Pp.  12-162,  163 


300  ECONOMIC  REALISM  [Ch.  VI 

In  the  second  work,  "Das  Bürgerliche  Recht  und  die 
besitzlosen  Klassen,"  Menger  criticizes,  from  the  very- 
interesting  point  of  view  of  those  without  means,  the 
outline  of  the  civil  law  of  the  German  Empire.  This 
work  was  merely  the  forerunner  of  "  Die  neue  Staatslehre ;" 
for  Menger  was  well  aware  that  "the  purpose  and  task 
of  the  author  of  the  compendium  was  to  prepare  it  upon 
the  basis  of  private  law,"  for  which  reason  "every  profit- 
able criticism  must  consider  the  work  with  reference 
to  the  actual  state  of  affairs."^  He  restricts  himself  to 
proposals  for  improvement  within  the  province  of  pri- 
vate law.  He  sets  forth  that  the  compendium,  which 
he  criticized  in  his  former  work,  follows,  as  do  all  com- 
pendiums  for  the  use  of  the  laity,  the  principle  of  pri- 
vate ownership,  of  freedom  of  contract,  and  of  the  right 
of  inheritance.  Yet  current  individualistic  forms  of 
treatment  of  property  rights  may  also  be  considered 
socialistically.  According  to  the  socialistic  views  these 
three  principles  are  converted  into  their  opposites.  The 
legal  system  of  private  right  is  psychologically  based 
upon  self-seeking;  the  socialistic,  upon  the  communal 
impulses.  Mcnger  then  undertakes  in  detail  to  socialize 
the  conditions  of  property  rights  of  the  "Compendium," 
and  to  transform  the  content  of  legislation  in  the  in- 
terests of  the  economically  dependent  classes. 

In  "Die  Neue  Staatslehre"  Menger  bases  his  socialistic 
teachings  upon  the  legal  foundation  of  a  "popular  labor 
state,"  "Arbeitsstaat."  He  sets  up  the  socialistic 
legal  order  as  against  the  modern  "Kulturstaat,"  which 
everywhere  bears  the  impress  of  the  individualistic 
State.  "The  individualistic  form  of  government  may 
be  termed  the  ruling  and  commanding  State,  or  the 
Stale  of  authority,  and  the  socialistic  order  of  govem- 
mciit    may  be  termed  the  Stale  of  the  working  classes, 

'  Ijiaun's  "Arcliiv,"  Vol.  11,  ]>.  2. 


§40]  SOCIALISM:  FURTHER  TYPES  301 

or  tlie  popular  Labor-State."  Even  in  tlie  latter  State 
a  certain  amount  of  governmental  force  would  be  neces- 
sary, but  a  much  smaller  amount  than  obtains  in  the 
present  State.  "When  the  welfare  of  all  shall  actually 
become  the  purpose  of  our  social  institutions,  and  when 
the  masses  of  the  people  through  these  institutions  shall 
be  educated  to  a  higher  degree  of  insight  and  of  personal 
sacrifice,  then  it  will  be  possible  to  leave  far  more  to 
their  initiative  than  we  slaves  of  convention  deem  pos- 
sible." The  individualistic  State,  "the  hereditary  form 
of  government,  has  developed  with  substantial  uni- 
formity in  all  countries  on  the  basis  of  the  military  and 
political  authority."  To  it  Menger  opposes  the  "social- 
istic or  popular  'Labor-State';  and  this,  reduced  to  its 
most  general  formula,  consists  in  making  the  individual 
interests  of  the  masses  of  the  people  the  chief  concern 
of  the  government."  He  regards  as  of  primary  import 
the  economic  side  of  the  people's  interest,  "the  mainte- 
nance and  fostering  of  individual  life,  the  preservation  of 
the  species,  and  the  security  of  life  and  health";  while 
such  matters  as  political  rights,  participation  in  the 
government  of  the  State,  are  assigned  a  secondary  place 
as  "means  to  an  end."  ^  For  the  masses  the  prime  con- 
sideration is  the  question  of  bread.  Menger  does  not 
allow  that  the  State  exists  for  itself,  and  considers  only 
the  ends  for  which  the  authorities  work.^  Right  is 
might;    legal   questions   are   questions  of   might. ^      He 

1  "Neue  Staatslehre,"  pp.  17,  15,  20  seq.,  75-154  (93-198  of  the 
first  edition). 

^  "Neue  Staatslehre,"  p.  1.57:  "States  as  such  have  no  purpose. 
It  is  only  their  rulers  who  have." 

3  "Neue  Staatslehre,"  p.  164:  "The  legal  order  is  the  prevalent 
conception  of  the  permanently  recognized  authorities  in  the  land." 
"The  sovereignty  is  the  highest  actual  power  in  the  State."  Who- 
ever is  sovereign  in  the  State  takes  his  stand  according  to  historical 
experience. 


302  ECONOMIC   REALISM  [Ch.  VI 

distinguishes  four  types  of  authority:  first,  the  supreme 
authority  in  the  State,  the  monarch  and  his  family,  or 
the  administration  in  Repubhcan  States;  they  seek 
power  and  pomp;  second,  the  nobiHty  and  the  higher 
clergy,  with  their  striving  for  preferment;  third,  the 
citizen  and  the  farmer  class,  who  are  anxious  to  possess 
material  goods  and  intellectual  opportunity;  fourth, 
the  unpropertied  classes  of  the  people,  who,  in  general, 
form  the  working  classes.  "Their  interests  coincide 
with  the  fundamental  objects  of  life,  and  are  thus  directed 
to  personal  security,  to  the  maintenance  of  a  life  worthy 
of  a  human  being  and  to  a  regulated  family  life.  Their 
energies  go  to  secure  the  conditions  of  existence."^ 

Menger's  views  in  regard  to  government  and  law  are 
the  most  sensible  that  have  been  advanced  from  the 
socialistic  standpoint.  He  divests  socialism  of  its  dis- 
guise-—  a  service  not  gratefully  accepted  by  the  Marx- 
ians. He  shows  socialism  in  its  true  nature  to  be  the 
emphatic,  and  deliberate,  and  likewise  the  partisan  ad- 
vocacy, of  the  interests  of  the  working  classes.  Such 
advocacy  looks  U]K)n  the  material  and  economic  interests 
of  labor  as  the  center  of  governmental  concern,  and 
desires  to  make  law  and  governmental  institutions  ser- 
viceable exclusively  to  the  economic  interests  of  the 
fourth  estate.- 

1  "Neue  Staatslehre,"  pp.  ir)7-lG0. 

"^Gumplowicz  pertinently  refutes  Alcnger's  conclusions  on  the 
basis  of  the  latter's  acknowledged  premises.  He  says  ("Die  soziolo- 
gische Staatsidee,"  (iraz  1892,  p.  lid):  "The  State  is  either  'the 
aggregate  of  permanently  recognized  audiorities,'  or  it  is  not;  if 
it  he  so,  wiiii  li  ex (II  Menger  recognizes,  the  ineciuality  is  inherent, 
for  liiere  can  he  relations  of  authority  only  wiiere  inecjuality  pre- 
vails. Where  jjcrfect  ecpiality  exists,  there  can  be  no  relations  of 
authority."  The  comment  of  ("lumplowicz  upon  the  economic 
\-,iliie  nf  ilu-  lalioring  classes  is  also  perlineiii.  {/hid.  p.  4()) :  "The 
laborers  (  an  al  best  organize  a  strike  and  thereby  paralyze  industry. 


§40]  SOCIALISM:  FURTHER  TYPES  303 

2:  LoRiA.  LoRiA^  (b.  1857)  approaches  socialism  and 
communism  with  a  radical  distrust  of  capital.  Some- 
what reminiscent  of  Rousseau,  he  makes  the  assumption 
of  a  condition  of  government  in  which  all  are  free;  it 
is  cupidity  that  brings  a  proprietary  class  into  existence. 
This  supposition  ^  is  not  put  forward  as  an  historical 
fact,  but  serves  to  express  his  view  that  morality,  law, 
and  political  institutions  grow  upon  an  economic  basis 
and  are  determined  by  economic  relations.  By  virtue 
of  the  dynamic  force  of  economic  laws,  the  various  forms 
of  income  lead  men  into  class  conflicts.  In  summarizing 
his  position  he  advocates  the  replacement  of  the  capi- 
talistic order  by  an  "equalizing  and  associative  econom- 
ics." The  advantages  of  this  form  of  society  as  against 
the  capitalistically  organized  State  are  set  forth  in  the  fol- 
lowing words:  "In  an  equalizing  and  associative  type 
of  economy,  the  social  organism,  being  in  perfect  equilib- 
rium by  virtue  of  its  nature,  will  have  no  need  of  finding 
the  guaranty  of  its  permanence  in  perverting  the  expres- 
sions of  human  nature,  which,  if  persisted  in,  are  likely 
to  repress  the  legitimate  and  moral  development  of  men. 
In  the  economic  stage  morality  will  be  the  natural  and 
spontaneous  expression  of  the  enlightened  self-interest 
of  man;  law  will  be  reduced  to  a  guaranty  to  the  pro- 
hut  they  cannot  establish  industries.  They  and  their  labors,  though 
forming  an  integral  part  of  the  State,  form  but  a  part." 

^  "Les  Bases  Economiques  de  la  Constitution  Sociale,"  second 
edition,  translated  from  the  Italian  by  A.  Bouchard  ("Bibliotheque 
Historique  et  Politique"),  Paris  1893.  The  first  edition  appeared 
in  Italian  in  Turin  1886.  The  French  edition  was  translated  into 
German  by  Karl  Criinberg,  with  the  title,  "Die  wirthschaftlichen 
Grundlagen  der  herrschenden  Gesellschaftsordnung,"  Freiburg  i/B 
and  Leipzig  1895.     There  is  also  an  English  translation. 

^Barth,  "Die  Philosophie  der  Geschichte  als  Soziologie,"  Leip- 
zig 1897,  p.  336:  "It  is  indeed  peculiar  that  Loria  presents  not  an 
historical  but  a  constructixe  de\ulopment  of  economics." 


304  ECONOMIC  REALISM  [Ch.  VI 

ducer  of  the  proceeds  of  his  labor,  and  there  will  be  no 
need  to  have  recourse  to  severe  penalties  to  enforce 
its  decrees.  Finally,  the  political  constitution  will  be 
the  expression  of  the  universal  consensus  and  the  aggre- 
gate of  the  institutions  necessary  to  secure  the  collec- 
tive welfare.  The  capitalistic  spirit  of  these  relations 
will  give  way  to  a  social  or  humane  attitude.  Morality, 
\aw,  and  politics  will  still  remain  the  associative  institu- 
tions of  society,  but  instead  of  being  put  to  the  service 
of  one  class  and  of  their  economic  interests,  these  insti- 
tutions will  have  for  their  end  the  advantages  of  all  men 
and  the  realization  of  their  highest  destiny."^ 

3:  SoMBART.  Werner  SoMBART-  (b.  1863)  favors  the 
materialistic  conception  of  history.  "Human  history  is 
either  a  struggle  for  food  or  a  struggle  for  the  feeding 
places  of  the  earth."  Every  social  class  is  the  result  of 
a  particular  type  of  jiroduction;  the  proletariat  is  the 
result  of  capitalistic  production.  "The  history  of  the 
origin  of  the  proletariat  is  accordingly  the  history  of 
cai)italism.  Capital  cannot  exist  or  develop  without  pro- 
ducing a  proletariat."  The  modern  social  movement  is 
an  inevitable  result.  The  imi)ortant  point  is  to  plan  the 
social  conflict  as  a  k'gal  struggle,  and  to  conduct  it  with 
proi)riety,    antl    without    malice.^      In    his    chief    work» 

1  "Lcs  Bases  Econoniitiucs,"  pp.  9,  13-74,  77-122,  423,  etc.,  pp. 
125-392;    pp.  423  430;    pp.  424,  425. 

2  His  chief  work  is  "Der  moderne  Kai)italisinus,"  2  vols.,  Leip- 
zig 1902.  Vol.  I,  "Die  Genesis  des  Kapitalismus,"  Vol.  II,  "Die 
Theorie  der  Kai)italistischen  Kntwickelung."  Otherworks,  "Sozial- 
ismus und  soziale  Bewegung  im  19.  Jahrhundert,"  Jena  189(1. 
I  cite  froni  the  fourth  edition  (tlie  ISlli  lo  2.3d  thousand),  Jena  1901. 
"Die  Vülkswirthschaft  im  ncunzelinten  Jahrliuiidert "  (Schienther, 
"Das  neunzehnte  Jahrhundeit  in  Dt-utschlands  iOntwickelung," 
\Mi.  \ll,  IJerlin  1903.) 

'  "Sozialismus  und  soziale  Bewegung  im  19.  Jalulumderl,"  fourth 
edition,  pp.  2,  1,  4,  90  100. 


§401  SOCIALISM:  FURTHER  TYPES  305 

"Der  moderne  Kapitalismus,"  Sombart  considers  the 
alternative  between  a  causal  and  a  teleological  pro- 
cedure; he  decides  for  the  former.  In  the  social  sciences 
the  consideration  of  historical  development  must  fur- 
nish the  clue  to  the  immediate  future  development. 

Since  the  decay  of  ancient  culture  there  have  been 
three  great  economic  periods,  —  the  peasant  feudal  order, 
the  artisan  order  or  industrial  development,  and  the 
capitalistic  order,  characterized  by  the  dominance  of 
mercantile  life.  The  first  indications  of  the  fourth  period, 
that  of  a  socialistic  form  of  association,  are  now  evi- 
dent. The  earlier  portions  of  the  work  trace  the  course 
of  development  up  to  the  point  at  which  the  capitalistic 
economics  prevailed  over  previous  systems  and  became 
the  dominant  influence.^  These  volumes  set  forth  the 
organization  of  industry  in  the  artisan  group;-  and  at 
greater  length,  the  rise  of  capitalistic  production^  and 
its  further  development.  In  considering  the  "modern 
reconstruction  of  economic  life,"  Sombart  observes  that 
this  renaissance  is  characterized  by  three  factors:  mod- 
ern 'aw,  modern  technology,  and  modern  standards  of 
living.  Modern  law  is  described  as  industrial  freedom, 
or  as  the  system  of  the  individualistic  legal  order  of  free 
competition.  The  guiding  principle  of  the  new  legal 
order  is  freedom  of  acquisition,  or  industrial  freedom 
in  the  narrower  sense;  freedom  of  contractual  asso- 
ciation; of  property;  the  transfer  of  ownership,  of  sale, 
and  of  the  debtor  relation ;  freedom  of  willing  and  general 
protection  of  legitimately  acquired  private  rights.  He 
believes  that  the  importance  of  economic  laws  for  the 

1  "Der  moderne  Kapitalismus,"    I,    pp.    XIII    seq.,    XVI    seq., 
XXXI  seq. 

2  Book  I:    "Die  Wirthschaft  als  Handwerk,"  pp.  75-192. 

^  Book  II:    "Die  Genesis  des  modernen  Kapitalismus,"    pp.  195 
seq. 


306  ECONOMIC  REALISM  [Ch.  VI 

development  of  the  several  economic  forms  is  overrated. 
The  new  technical  methods  were  established  through  the 
application   of    machinery.       Machinery    increased    the 
human  output  above  the  maximum  attainable  by  any  in- 
dividual effort,  and  therein,  and  not   in  the  saving  of 
human    labor,  lay    its   essential    advantage.      The    new 
methods  appeared  further  in  the  application  of  science  to 
technology  through  the  replacement  of  empirical  skill  by 
rational  or  scientific  procedure.     The  new  standards  of 
economic  life  appear  In  the  increased  cost  of  living,  and  in 
the  increasing  dominance  of  the  factor  of  material  produc- 
tions over  other  interests.     Towards  the  close  of  the  work 
Sombart  describes  the  rise  of  modern  agriculture;    the 
origin  and  character  of  the  modern  city;   modern  needs, 
and  their  extension,  concentration  and  refinement;    the 
consolidation  and  uniformity  of  expenditure  in  the  cities; 
the  wholesale  expression  of  conformity,   as  in  the  de- 
mands of  fashion;   the  transformation  of  the  commercial 
market.     He  continues  with   the  "theory  of  industrial 
competition."     In  the  victory  of  the  capitalistic  indus- 
trial order  over   the  artisan  organization,  the  point   at 
issue  was  not  the  opposition  between  business  on  a  large 
or  a  small  scale,  but  between  the  organization  of  manual 
labor  and  of  capital.     The  latter  proved  the  stronger; 
first   in  the  competition  for  the  quality  of  the  products, 
and  again  in  the  competition  of  ])rices.    The  several  fac- 
tors in  the  competition  for  criiciency  of  ]iroduction  were, 
first,  ihc  attractiveness  and  appeal  of  the  goods.     The 
capitalistic  cnlerprise  was  better  able  to  meet  the  grow- 
ing demand  for  wholesale  j^roduction  and  prompt  deliv- 
ery.     It    could   manufacluic  ujion  dc-niand,   and  supply 
a  fresh  stock,  always  marketable,  ui)-to-dale,  and  attrac- 
tive.    Second,  the  cjuality  ol   thr  product.     Capitalistic 
cnteq^rise,  as  oi)i)ose(l   to  li.ind  hibor,  pioduced  better, 
more  durable,  stylish,  artistic,  and   nnitorm  goods.      It 


§40]  SOCIALISM:  FURTHER  TYPES  307 

was  the  development  of  taste  that  deprived  manual 
labor  of  its  existence;  for  though  the  artist  continues 
to  serve  his  art,  yet  the  form  in  which  his  service 
reaches  the  public  is  controlled  by  capitalistic  enter- 
prise. In  the  conflict  of  prices,  likewise,  capitalistic 
enterprise  got  the  better  of  manual  labor.  Capitalistic 
superiority  was  able  to  assert  itself  despite  sporadic 
checks  and  the  hopes  of  the  trades-unions.^ 

'"Der  moderne  Kapitalismus,"  Vol.  II,  pp.  25-89,  91-420,    421 
seq.,  430,  432-462,  463-539,  540  seq.,  544-560. 


308  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 


CHAPTER  VII 

THE     SOCIOLOGICAL     RECONSTRUCTION     OF 
LEGAL  PHILOSOPHY 

THE  DEVELOPMENT  OF  SOCIOLOGY:  (1)  COMTE  AND  THE  BEGIN- 
NINGS OF  SOCIOLOGY;  (2)  POSITIVISM  AND  SOCIOLOGY;  (3)  THE 
SOCIOLOGY  OF  SPENCER.  —  SOCIOLOGICAL  AND  SOCIAL-ETHICAL 
EXTREMISTS:  (1)  THE  CONCEPTION  OF  "SOCIETY";  (2)  SOCIAL 
ETHICS;      (3)     SOCIOLOGICAL    IDEALS.  — SOCIAL     UTILITARIANISM: 

(1)  SHAFTESBURY;  (2)  IHERING.  — THE  SOCIOLOGICAL  SCHOOL:  (1) 
ITS  DISTINCTIVE  POSITION;  (2)  ITS  PRECURSORS;  (3)  GUMPLOWICZ; 
(4)  RATZENHOFER'  (5)  RECENT  REPRESENTATIVES  —  TONNIES. 
KLÖPPEL,  BERGEMANN;  (6)  CRITICAL  SUMMARY  OF  THE  SOCIOLOG- 
ICAL POSITION;  (7)  APPLICATIONS  OF  THESOCIOLOGICAL  POSITION: 
(a)  CORPORATIONS;  (b)  PENOLOGY.  — REALISTIC  AND  HISTORICAL 
TRENDS  IN  POLITICAL  ECONOMY  AND  SOCIOLOGY.  — THE  THEORY 
OF  NORMS.  —  ETHNOLOGICAL  JURISPRUDENCE.  —THE  REINSTATE- 
MENT OF  KANT  AND  HEGEL:  V.  HARTMANN:  (1)  NEO- KANTIANISM; 

(2)  NEO-HEGELIANISM;  (3)  THE  PHILOSOPHY  OF  V.  HARTMANM  — 
PSYCHOLOGICAL  ASPECTS  OF  LAW  AND  ECONOMICS:  (1)  THE 
PSYCHOLOGICAL  BASIS;  (2)  CRIMINAL  PSYCHOLOGY.  —  RECEr^'T 
SURVEYS  OF  FUNDAMENTAL  PROBLEMS:  (1)  MERKEL  AND 
HIS  FOLLOWERS;  (2)  SCHMIDT;  (3)  PAULSEN;  (4)  BAUMANN;  (5) 
SCHUPPE.— THE  INFLUENCE  OF  THE  PRINCIPLES  OFEVOLUTION:  (1) 
SOCIAL  ARISTOCRACY  — NIETZSCHE;  (2)  EVOLUTIONARY  MONTSM  — 
HAECKEL;   (3)    EVOLUTION  AND  SOCIALISM;   CLASS   AND  STATE. 

§  4L  The  Development  of  Sociology.  \  Comte  and 
Tiiic  Ri;<;i\NLN(;s  of  Sociology.     Auguste  Comte  '  (1798- 

'  (Comic's  cliirf  wor'c  is  "('ours  (li>  l'liil()s);)!iit;  I'  )-;i(i\-(',"  (>  vols., 
1830-1842.  V)ls.   I\',  V,   "I'hysi(iui;  Sociale";    Vol  VI  conlaiiis  iht- 


§41}        DEVELOPMENT  OF  SOCIOLOGY  309 

1857)  is  the  founder  of  a  philosophy  of  experience 
which  he  calls  positivism.  It  holds  that  knowledge  is 
limited  to  the  phenomenal  world,  to  the  relations  of 
phenomena  to  one  another,  which  are  to  be  studied  from 
the  point  of  view  of  natural  science  or  natural  philosophy. 
From  the  same  point  of  view  it  attempts  to  interpret 
the  nature  of  government  and  to  derive  the  phenomena 
of  political  life.  But  government  and  law  are  not  amen- 
able to  this  naturalistic  treatment;  accordingly  Comte, 
accepting  the  term  of  Saint-Simon,  makes  the  object 
of  his  study  not  the  institutions  of  government  and  law, 
but  society. 

He  distinguishes  three  stages  of  human  developmeiit 
characterized  by  different  philosophies  and  methods. 
The  theological  or  "mythical"  stage  is  the  oldest;  under 
its  dominance  every  object  is  personified  and  made  a 
fetish.  It  is  succeeded  by  the  metaphysical  or  abstract 
stage.  The  gods  —  or  in  the  monotheistic  system, 
God  —  are  replaced  by  the  concepts  of  the  thinkers 
whose  faith  invests  them  with  reality.  The  third  and 
final  stage  is  reached  in  the  conception  of  a  positive  or 
scientific  philosophy. ^  Its  point  of  departure  is  the 
conviction  that  the  ultimate  nature  of  things  is  unknow- 
able. Man  can  merely  study  phenomena  and  their 
mutual  relations  inductively;  all  knowledge  is  empirical 
and  is  based  upon  inductive  reasoning;  all  scientific  con- 
clusions proceed  from  inductions;  the  law  of  causality,  in 
the  last  analysis,  is  the  result  of  an  induction.  Such 
approximate  knowledge  is  adequate  for  human  needs. 
Positive  science  is    content   to  determine  the  laws  of 

complement  of  the  social  philosophy.  I  cite  from  the  third  edition, 
Paris  1869. 

*  "Cours,"  Vol.  I,  p.  8.  Comte  describes  the  three  stages  as  "the 
theological  or  mythical,  the  metaphysical  or  abstract,  the  scientific 
or  positive  stage." 


ölO  SOCIOLOGICAL  PHILOSOPHIES    [Cii.  VII 

nature;  it  renounces  the  hope  of  an  ullhnatc  explana- 
tion, and  stops  with  an  understanding  of  the  opera- 
tions of  laws  of  nature.  In  his  philosophy  Comte 
subjects  the  several  sciences  to  a  "positive"  interpre- 
tation. Proceeding  from  the  simpler  fundamental 
sciences  to  the  more  complex,  he  considers  Mathema- 
tics, Astronomy,  Physics,  Chemistry,  Biology;  the 
latter  including  the  three  main  groups  of  the  phe- 
nomena of  organic  life,  of  animal  life,  and  of  intel- 
lectual and  moral  life  dependent  upon  the  nervous 
system.  The  last  of  these  groups  should  presumably 
include  law  and  government;  but  in  the  positive  phil- 
osophy these  become  the  great  independent  discipline 
of  sociology,  or  "physique  sociale";  for,  according  to 
Comte,  the  nature  of  a  science  does  not  determine  its 
method,  but  the  method  determines  the  science.  It 
is  because  government  and  law  are  not  amenable  to  the 
methods  of  natural  science  that  the  State  is  replaced 
by  society,  and  law  and  economics  by  social  life.  Thus 
Comte  became  the  founder  of  the  new  social  science, 
calling  it  first  Social  Physics — ^  "Physique  Sociale,"  — 
and  later  Sociology  —  "Sociologie."  ^  In  time  sociology 
encroached  upon,  and  more  or  less  absorbed,  the  phil- 
osophy of  government  and  law. 

Following  the  dissertation  on  method  and  the  con- 
sideration of  the  relation  of  socieil  physics  to  the  other 
positive  sciences,  Comte  treats  of  social  statics  and 
dynamics  —  the  method  again  determining  the  nature  of 
the  conclusions.  In  his  biology,  environment  is  accorded 
the   largest   influence.^     The   nature    and   development 

*  "Cours,"  Vol.  IV,  p.  1S5.  Comle  uses  the  term  "sociology"  for 
his  own  original  phrase,  "physique  sociale." 

2  "Cours,"  Vol.  Ill  (i^iology),  p.  200,  note  1:  "It  will  be  super- 
fluous, I  hope,  to  juslify  the  fre(|uent  use  which  I  shall  hcnce- 
fortii  make  in  liiolo^)'  "f  I  he  Iciiu  'ciuironiuciil'  to  ck'sigiiatc  briefly 


§41]         DEVELOPMENT  OF  SOCIOLOGY         311 

of  living  creatures  are  determined  by  environment. 
Carrying  this  principle  into  sociology,  the  individual 
is  made  the  resultant  of  his  social  conditions.  Social 
statics  treats  of  the  nature  and  relations  of  social  phe- 
nomena, which  it  presents  as  crystallized.  Its  funda- 
mental law  is  that  of  organic  dependence.  The  primary 
social  unit  is  the  family.^  Social  dynamics  treats  of  the 
laws  of  genesis  and  normal  development  of  social  phe- 
nomena in  their  process  of  evolution.  Comte  applies 
the  three  stages  —  theological,  metaphysical,  and  posi- 
tive—  to  th'^  phenomena  of  social  life.  Society  is  an 
organism  which  shows  its  stage  of  progress  by  the  degree 
to  which  its  higher  activities  prevail  above  the  lower. 
If  the  entire  social  life  were  completely  determined  by 
natural  law,  and  man  were  absolutely  conditioned  by 
his  environment,  then  fatalism  is  inevitable.  This  is 
not  Comte's  conclusion.  He  seeks  a  mode  of  escape  for 
social  politics  from  the  absolute  determinism  of  nature. 
He  holds  that  the  development  and  perfection  of  the 
human  species  is  the  goal  of  all  endeavor;  and  by  this 
conception  gives  positivism  a  practical  value. 

No  work  of  the  nineteenth  century  had  so  ominous, 
not  to  say  fatal,  an  influence  upon  the  course  of  the 
political  sciences  as  Comte's  "Cours  de  Philosophie  Posi- 
tive," an  influence  at  once  socialistic  and  sociological. 
So  far  as  concerns  socialism  it  was  comparatively  easy 
to  separate  the  chaff  from  the  wheat  and  hold  the  scien- 
tific interests  intact.  But  the  science  of  government, 
including  the  philosophy  of  law,  was  ousted  by  sociology 
and  is  still  suffering  from  the  confusion  and  vagueness 

and  summarily,  in  particular  not  alone  the  medium  in  which  the 
organism  is  immersed,  but  in  general  the  sum  total  of  external 
circumstances  of  whatever  character  necessary  to  the  existence  of 
each  special  organism." 

1  "Cours,"  Vol.  IV,  pp.  39S  seq. 


312  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

of  thought  thus  induced.  For  "society"  became  an 
insistent  concept,  absorbing  law,  government,  and 
economics,  or  relegating  them  to  wholly  subordinate 
positions.  "Social  welfare"  was  made  the  goal  of  devel- 
opment, though  the  term  was  not  clearly  and  critically 
defined.  It  was  left  undetermined  in  what  welfare  con- 
sists, or  what  group  of  persons  was  referred  to  by  the 
unassimilated  aggregate,  so  diversely  concerned  in  public 
welfare.  Indeed  from  the  nebulous  background  of  sociologi- 
cal principles  there  emerges  little  more  than  an  uncritical 
tendency  towards  democratic  or  demagogic  hedonism. 

Positivism,  like  the  philosophy  of  Kant,  accepts  the 
impossibility  of  knowing  the  ultimate  nature  of  things. 
It  confines  itself  to  the  world  of  phenomena,  is  limited 
by  experience,  and  proceeds  by  the  method  of  natural 
science.  Whatever  transcends  experience  is  rejected. 
Comte's  positive  philosophy  is  hardly  a  philosophy 
at  all;  and  his  sociology  is  not  a  philosophy  of 
law,  government,  and  society,  but  a  collection  of  facts 
and  descriptions  of  logical  relations.  He  deals  with 
mere  em])irical  consequences,  such  as  that  from  a  fol- 
lows b,  and  if  there  is  no  a,  there  is  no  b;  and  social 
philosoi)hy  as  well  as  social  ethics  becomes  the  embodi- 
ment of  a  general  mechanical  fatalism.  Events  follow 
from  a  natural  necessity.  There  is  no  place  for  ethical 
norms  and  moral  obligations.  The  severe  logicality  of 
positix'ism  may  be  adefiuate  to  the  scientific  breeding  of 
dogs,  but  hardly  to  the  education  of  human  beings. 
Positivism  leaves  the  individual  without  rules  of  con- 
duct, and  society  without  guides  for  its  orderly  devel- 
opment. \\\'v\\  Cium])lowicz,  though  a  sui)i)orter  of 
sociology,  admits  that  it  leads  to  a  fatalistic  resignation 
alike  in  ])rac1  ice  and  in  theory.  Sociology  does  not  solve, 
or  try  to  solve,  th(!  fundamental  ■|)roblems  of  the  phil- 
osophy of  law  and  go\'ernment;   it  merely  evades  tiiem. 


§41]         DEVELOPMENT  OF  SOCIOLOGY  313 

This  radical  defect  is  not  due  to  the  expositors  of  sociol- 
ogy, but  is  inherent  in  the  sociological  attitude.  When 
sociology  attempts  to  be  more  than  a  purely  descrip- 
tive discipline  dealing  with  its  subject  from  the  point 
of  view  of  ethnology  and  race-psychology,  and  attempts 
to  be  a  social  philosophy  serving  as  a  philosophical 
basis  for  law  and  government,  it  fails  by  reason  of  an 
inappropriate  method.  Sociology  as  a  social  philosophy 
approaches  the  solution  of  the  problems  of  law  and  gov- 
ernment by  the  method  of  the  natural  sciences.  Mod- 
ern criticism  would  not  tolerate  an  attempt  to  present 
natural  philosophy  from  the  legal  point  of  view,  would 
hardly  approve  the  interpretation  of  the  laws  of  nature 
from  the  point  of  view  of  the  laws  of  justice.  The  con- 
verse procedure  is  not  more  commendable.  Sociology 
proceeds  from  the  concept  of  socialization  in  its  most 
comprehensive  aspect.  Every  form  of  associated  group 
is  considered  —  the  State  and  its  economic  institutions 
form  one  of  these  groups,  as  a  species  of  the  genus  society. 
Here  we  touch  upon  the  basal  misconception  or  evasion 
of  sociology.  For  whether  or  not  the  State  is  more  than 
a  form  of  socialization  is  a  fundamental  question  of  the 
science  of  law  and  government.  Positivism  assumes 
it  to  be  so;  the  difference  between  it  and  other  forms 
of  socialization  lies  merely  in  its  distinctive  position, 
its  power  of  legal  coercion.  Consequently  right  is  simply 
might.  For  the  positivist  this  is  an  inevitable  conclu- 
sion because  it  is  an  implicit  presupposition;  in  the 
Kantian  terminology,  it  is  the  positivist's  analytic  judg- 
ment. That  is  all  there  is  to  the  positivist's  legal 
philosophy:  simply  that  right  is  might.  Natural  law 
prevails  in  the  social  sphere.  Science  may  study  laws, 
but  men  must  yield  to  them. 

2:    Positivism    and   Sociology.      The   objection    to  a 
sociological  philosophy  is  not  limited  to  the  practical 


314  SOCIOLOGICAL  PHILOSOPHIES    [Cii.  VII 

and  personal  one  of  its  issue  in  fatalism;  its  fundamental 
position  is  misleading.  Comte  regarded  himself  as  the 
first  contributor  to  true  science;  but  in  reality  the 
philosophical  bases  of  positivism  are  quite  uncritical. 
The  most  tangible,  and  presumably  most  certain  fact 
of  our  environment,  as  revealed  to  our  perceptions,  is 
the  nature  of  the  world  of  objects,  which  Descartes 
proposed  as  the  starting  point  of  philosophical  inquiry. 
For  him  the  essence  of  matter  was  extension.  This 
solution  of  the  problem  seemed  too  superficial  to  Leib- 
nitz, who  regarded  the  essence  of  matter  as  force  or 
energy;  in  Spinoza's  pantheism  the  problem  lost  its  per- 
tinence; Kant  relied  upon  the  efficiency  of  pure  reason, 
space  and  time  being  considered  a  priori  concepts, 
and  space  as  antecedent  to  human  experience  and  as 
a  medium  for  the  location  of  objects.  Kant  did  not 
inquire  critically  as  to  the  nature  of  objects,  but  only 
to  what  extent  the  conception  of  space  belonged  to 
pure  reason;  he  concluded  that  the  conception  of  spac? 
preceded  experience,  but  that  spatial  content  was  a 
matter  of  experience.  The  question  whether  and  how 
far  knowledge  can  transcend  experience,  positivism 
relegates  to  the  domain  of  faith,  which  deals  with  the 
world  that  lies  beyond  the  province  of  science.  But 
positivism  is  not  thorough-going  enough  to  examine 
seriously  the  nature  of  this  external  world  of  things. 
Since  Leibnitz,  no  i)hil<)soi)her  has  given  adequate  atten- 
tion 1o  lhis  primary  and  urgent  i)r<)bl('m  of  metaphysics 
and  tlic  llu'oiy  of  knowledge.  The  woild  of  exix^rience, 
the  woild  as  ai)i)n'hcnded  by  our  senses,  appears,  pri- 
marily as  ('onijxjsed  of  objects.  Hence  i)liiloso])hy  asks: 
What  is  an  object?  And  if  \\e  l)egin  with  number  as 
most  ((rlain  and  concrete,  the  question  becomes:  What 
is  tniit\',  tlic  unity  of  oxi)eri(;nc(>?  In  tlie  first  ^'olume 
of  my  work  I  ])r(si'ntcd  a  s  )lnlio!i  v.!mc'i  ma\'  be  inade- 


§41]        DEVELOPMENT  OF  SOCIOLOGY         315 

quate,  imperfect,  perhaps  even  erroneous,  but  which  is 
a  serious  and  critical  attempt.  Positivism,  like  most 
other  empirical  systems  of  philosophy,  passes  lightly 
over  the  fundamental  questions  »of  the  nature  of  the 
elementary  facts  of  experience.  But  in  the  light  of 
this  problem,  the  inadequacy  of  the  positivistic  hypoth- 
esis is  evident;  and  with  the  proof  of  its  failure,  the 
positivist  social  philosophy  likewise  crumbles,  and  its 
sociology  falls  to  the  level  of  a  descriptive  science,  as 
little  suited  to  replace  a  philosophy  of  law  and  govern- 
ment as  is  anthropology  or  biology  or  any  other  of  the 
natural  sciences  dealing  with  man. 

Positivism  is  uncritical,  self-contradictory,  and  opposed 
to  the  facts  of  history.  It  attempts  to  derive  all  knowl- 
edge from  experience,  which  it  regards  as  the  exclusive 
source  of  human  knowledge.  Yet  the  material  of  Comte's 
biology  and  sociology  is  not  the  world  of  experience  as 
it  actually  is,  but  our  interpretation  of  it,  growing  out 
of  a  false  view  of  the  law  of  causality.  In  Comte's  biol- 
ogy the  most  important  principle  is  that  environment 
determines  development.  Every  object  is  the  result 
of  the  forces  and  factors  to  whose  influence  it  is  sub- 
jected; and  this  he  applies  to  human  associations.  The 
nature  and  development  of  the  individual  is  determined 
by  the  group  to  which  he  belongs.  This  view  disregards 
the  most  fundamental  fact  of  history  — ■  the  emanci- 
pation of  man.  History  shows  a  constant  process  of 
emancipation  of  man  from  the  control  of  environment. 
At  first  helpless  in  the  presence  of  the  world  of  objects, 
man  eventually  conquers  nature  through  the  processes 
of  culture.  As  development  proceeds,  the  dependence 
upon  natural  endowment  diminishes.  Emotion  replaces 
instinct,  and  reason  replaces  emotion;  the  organism 
acquires  artificial  capacities.  As  culture  progresses, 
differentiations  increase  in  refinement,  human  individual- 


3 IG  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

ity  becomes  more  marked  and  more  assertive,  and  the 
influence  of  circumstances  recedes.  As  illustrations  of 
natural  forces,  the  falling  stone,  the  reactions  of  plants 
to  stimuli,  the  response  of  animals  to  impulses  and  sit- 
uations, and  the  rational  behavior  of  man,  are  all  on 
a  par.  But  such  a  statement  disregards  the  fact  that 
in  each  step  of  this  series  the  analogy  weakens  for  the 
reason  that  the  initiative  of  the  subject  constantly 
increases  and  the  influence  of  the  objective  situation 
diminishes.  Human  history  shows  the  same  process, 
the  constant  growth  and  assertiveness  of  subjective 
spontaneity.  Positivism  is  a  naturalistic  corollary  of 
Spinoza's  pantheism.  In  both  systems  the  individuality 
is  lost  and  absorbed,  —  in  Spinoza,  in  the  divine;  in 
Comte,  in  the  natural  world. 

Comte  and  the  sociological  school  did  not  discover,  but 
they  adequately  emphasized  the  fact  that  men  have  ever 
been  associated  in  groups,  and  the  further  fact  that  the 
impulses  towards  the  establishment  of  government  and 
law  originated  not  in  the  isolated  individual  but  in  the 
social  group;  and  this  forms  their  permanent  contri- 
bution. Comte  is  the  last  of  the  writers  who  found  it 
necessary  to  antagonize  the  view  that  the  individual 
forms  the  objective  point  of  "natural  law,"  and  that 
society  is  built  upon  an  individualistic  basis.  The  cen- 
tral position  of  the  social  unit  is  established,  and  Comte's 
share  therein  must  be  acknowledged.  Beyond  this  but 
little  of  Comic's  system  will  be  retained.  In  course  of 
time  it  will  be  recognized  that  the  principle  that  social 
welfare  is  the  determining  motive  in  the  development 
of  go\'(>rnment  and  law  is  but  a  revival  of  WolH's  posi- 
lioii,  in  whicli  the;  ])atcrnalism  of  benevolent  law  re- 
])laces  lh(;  bciuNolcut  ahsolulism  of  llu>  monarch,  and 
an  undisguised  hedonism  is  rei)hiced  b\'  the  doctrine 
of  s<nial  welfaic. 


§41]        DEVELOPMENT  OF  SOCIOLOGY         317 

3:  The  Sociology  of  Spencer.  In  the  nineteenth 
century  the  theory  of  evolution  was  reconstructed 
deductively,  inductively,  and  by  combination  of  the  two 
procedures,  thus  again  indicating  that  method  is  second- 
ary to  the  dominant  intellectual  trend.  In  his  speculative 
philosophy  Hegel  employed  the  deductive  method,  and 
restated  in  modern  phraseology  the  principle  of  the  Her- 
aclitean  flux.  Lamarck  and  Darwin  studied  the  pro- 
cesses of  evolution  inductively.  The  combined  method 
forms  the  basis  of  the  system  of  Herbert  Spencer 
(1820-1903).  In  the  history  of  ideas  an  extreme  move- 
ment in  one  direction  is  apt  to  induce  a  reaction  in  the 
other.  The  older  philosophy  was  so  intensely  occupied 
with  "being"  that  it  disregarded  "becoming";  contem- 
porary philosophy  everywhere  detected  growth  and 
evolution,  and  fixed  relations  disappeared.  This  ex- 
treme assertiveness  of  the  idea  of  evolution,  and  of  an 
all-pervading  evolutionary  philosophy,  has  reacted  dis- 
advantageously  upon  the  development  of  legal  philos- 
ophy. It  is  overlooked  that  evolution  itself  consists 
of  an  infinite  series  of  momentary  points  of  arrest,  and 
that  the  study  of  evolution  must  be  supplemented  by 
a  consideration  of  the  static  moments  embodied  in 
governmental  and  economic  institutions.  For  individuals 
realize  themselves  as  static  units,  and  their  interests 
claim  the  available  benefits  of  the  protective  institutions 
of  government,  of  law,  of  ethics,  and  of  civilization  in 
general. 

The  "sociology"  of  Herbert  Spencer  is  under  obliga- 
tions to  Comte,  yet  is  the  direct  issue  of  evolutionary 
principles.^     It  reflects  the  common  failing  of  sociolog- 

^  For  Spencer's  principles  of  evolution  see  Berolzheimer,  "System," 
Vol.  I,  pp.  124-128,  especially  pp.  127  seq.  Ilensel,  "Hauptprob- 
leme der  Ethik,"  Leipzig  1903,  pp.  17-42,  gives  a  good  exposition 
and  criticism  of  the  theory  of  evolution. 


318  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

ical  systems  —  that  of  regarding  the  State  merely  as 
a  type  of  social  alliance.  In  the  first  volume  of  his 
"Principles  of  Sociology,"  under  the  heading,  "The 
Data  of  Sociology,"  Spencer  brings  together  consid- 
erable ethnographical  and  anthropological  material. 
Societies  resemble  individual  organisms;  they  originate 
in  small  beginnings  and,  as  they  develop,  become  more 
and  more  complex  in  structure;  the  mutual  dependence 
of  the  constituents  of  societies  constantly  increase, 
while  society  as  a  whole  becomes  more  independent  of 
the  units  of  which  it  is  composed.  Yet  the  social  or- 
ganism presents  large  differences  from  individual  organ- 
isms, and  Spencer  applies  the  term  "superorganic"^  to 
the  evolution  of  society.  The  phenomena  of  social 
evolution  are  conditioned  partly  by  the  external  influ- 
ences acting  on  the  "social  aggregate,"  and  partly  by  the 
character  of  its  constituent  parts.  Both  groups  of  evo- 
lutionary factors  are  subject  to  progressive  variations. 
"While  the  fear  of  the  living  becomes  the  root  of  the  polit- 
ical control,  the  fear  of  the  dead  becomes  the  root  of 
the  religious  control."- 

The  second  part  of  the  work  establishes  the  organic 
nature  and  functions  of  society .=*  The  third  part  de- 
scribes domestic  institutions;'*  the  fourth,  ceremonial 
institutions;  the  fifth,  ])olitical  institutions,  including 
those  of  the  church,  of  the  ])rofessions,  and  of  the 
industries.     Thus  government  and  law  are  completely 

'Ch.  I. 

2Ch.  27,  §  200,  p.  .721. 

3  "Sociolijgy,"  Part  II,  "The  Indurlions  of  Sociology."  Apple- 
ton  edition,  1S!)0.  This  biological  conception  of  society  is  stated 
by  Spetuir  in  "Six  i,il  Statics"  and  again  in  "The  Social  Organism," 
and  in  I  lie  "Sluil\-  of  Sociology"  (chap.  XIV).    , 

■*  I  inlcr  the  lillc,  "'I'lii'  Domestic  Relations." 


§41]        DEVELOPMENT  OF  SOCIOLOGY  319 

incorporated  in  sociology,  and  are  considered  merely  as 
sociological  factors. 

In  the  chapter  on  "Political  Organization  in  General," 
Spencer  concludes  that  "political  organization  [is]  to 
be  understood  as  that  part  of  social  organization  which 
consciously  carries  on  directive  and  restraining  func- 
tions for  public  ends."  An  important  principle  appears 
in  the  political  differentiation  of  men  and  women;  what 
was  originally  a  "domestic  relation  between  the  sexes 
passes  into  a  political  relation,  such  that  men  and  women 
become  in  militant  groups  the  ruling  class  and  the  sub- 
ject class;  so  does  the  relation  between  master  and  slave, 
originally  a  domestic  one,  pass  into  a  political  one  as 
fast  as,  by  habitual  war,  the  making  of  slaves  becomes 
general.  It  is  with  the  formation  of  a  slave  class  that 
there  begins  that  political  differentiation  between  the 
regulating  structures  and  the  sustaining  structures, 
which  continues  throughout  all  higher  forms  of  social 
evolution."  In  short,  masters  and  slaves  are  necessary 
factors  in  political  society.  Neglecting  the  small  nomadic 
groups,  class  differentiations  still  persist  and  go  back 
to  the  beginnings  of  social  life.  A  study  of  the  "polit- 
ical forms  and  forces"  reveals  three  essential  factors 
in  the  community:  a  small  group  of  the  powerful,  a 
large  group  of  the  weak,  and  one  individual,  — ■  the  chief- 
tain, the  ruler,  — emerging  by  reason  of  his  superiority 
from  the  ranks  of  the  powerful.  "In  its  primitive  form, 
then,  political  power  is  the  feeling  of  the  community 
acting  through  an  agency  which  it  has  either  informally 
or  formally  established."  History  furthermore  shows 
the  force  of  conservatism  whereby  "a  government  is  in 
the  main  but  an  agency  which  works  the  force  of  public 
feeling,  present  and  past."  To  a  large  extent  the  ruler 
is  the  instrument  executing  the  will  of  the  dead  past. 
Spencer  emphasizes  the  decisive  influence  of  the  feeling 


320  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

of  the  community  or  of  its  dominant  classes  in  develop- 
ing and  maintaining  power,  so  that  "in  its  widest  accep- 
tation the  feeling  of  the  community  is  the  sole  source 
of  political  power,"  at  least  in  those  communities 
which  are  not  under  foreign  domination.  The  position 
of  the  ruler  rests  upon  superior  ability,  usually  com- 
bined with  courage. 1  In  later  parts  of  his  work  Spencer 
analyzes,  or  rather  describes,  the  political  forms  and 
forces;  the  representative  bodies,  the  ministries,  the 
local  governing  agencies;  military  systems;  judicial 
and  executive  systems.  But  these  descriptive  studies 
yield  little  of  value  for  the  philosophy  of  law  and 
government. 

"Law,  whether  written  or  unwritten,  formulates  the 
rule  of  the  dead  over  the  living."  This  dominance  of 
the  past  results  from  the  belief  in  Animism;  it  leads  to 
regulation  and  law;  and  the  law,  by  virtue  of  its  sup- 
posedly sacred  origin,  attains  its  inviolable  and  perma- 
nent character.2  "Such  being  the  origin  and  nature 
of  laws,  it  becomes  manifest  tiiat  the  cardinal  injunc- 
tion must  be  obedience."  It  is  thus  by  an  ethnological 
approach  that  Spencer  reaches  Binding's  "Theory  of 
Norms."  Law  arises  from  four  sources:  "inherited 
usages  which  ha\e  a  (juasi-religious  sanction";  "special 
injunctions  of  deceased  leaders,  which  ha^'c  a  more  dis- 
tinct relit;i()us  sanction";  "the  will  of  the  ])re(lominant 
man,"  either  by  reason  of  ability  or  ])ower;  and  "aggre- 
gate opinion."  At  a  later  stage,  laws  are  differentiated 
into  sacred  .and  secular;  again  inlo  laws  designed  to 
uphold  the  authority  of  the  heads,  and  "those  which, 
directly  and  irres])ective  of  authority,  conduce  to  social 
welfare."    As  laws  change  in  form,  the  sentiments  which 

*  "Sociology,"  Part  V,  cliap.  VI:  "I'olilical  heads  —  chiefs, 
kings,"  etc. 

*Part  \^  chap.  XIV,  treats  of  Llic  laws. 


§41]        DEVELOPMENT  OF  SOCIOLOGY  321 

they  arouse  in  the  community  Hkewise  change.  With 
such  changes  the  theory  of  legal  sanction  also  changes; 
in  a  theocratic  State  the  laws  are  regarded  as  the  eman- 
ation of  the  divine  will ;  in  States  in  which  an  absolute 
form  of  government  in  centered  in  the  hands  of  a  single 
person  or  of  a  few,  the  source  of  the  law  is  the  will  of  the 
rulers.  As  progress  is  made  towards  popular  govern- 
ment, it  becomes  more  generally  agreed  that  the  ulti- 
mate sanction  of  the  law  is  the  popular  will.  Yet  the 
last  view  is  but  a  transitional  stage  towards  the  view 
which  Spencer  defends,  namely,  "that  the  source  of 
legal  obligation  is  the  consensus  of  individual  interests 
itself,  and  not  the  will  of  the  majority  determined  by 
their  opinion  concerning  it,  which  may  or  may  not  be 
right."  Already,  even  in  legal  theory,  '  especially  as 
expounded  by  French  jurists,  natural  law  or  law  of 
nature  is  recognized  as  a  source  of  formulated  law:  the 
admission  being  thereby  made  that,  primarily  certain 
individual  claims,  and  secondarily  the  social  welfare 
furthered  by  enforcing  such  claims,  furnish  a  warrant 
for  law,  anteceding  political  authority  and  its  enact- 
ments. Already  in  the  qualification  of  common  law 
by  equity,  which  avowedly  proceeds  upon  the  law  of 
"honesty  and  reason  and  of  nations,'"  "there  is  involved 
the  presupposition  that  as  similarly  constituted  beings, 
men  have  certain  rights  in  common,  maintenance  of 
which,  while  directly  advantageous  to  them  individually, 
indirectly  benefits  the  community;  and  that  thus  the 
decisions  based  on  equity  have  a  sanction  independent 
alike  of  customary  law  and  parliamentary  resolves." 

Spencer  thus  assumes  that  "natural  law"  becomes 
operative  when  "natural  law"  as  a  principle  has  been 
superseded  and  is  but  occasionally  referred  to;  fur- 
thermore he  holds  that  law  is  based  on  the  "consensus 
of  individual  interests"- — in  a  measure  a  strange  con- 


322  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

elusion,  as  it  conflicts  with  the  sociological  doctrine  of  class 
differentiation.  It  is  a  sad  commentary  upon  the  in- 
evitable result  of  making  the  philosophy  of  law  an  appen- 
dix to  sociology/  that  nothing  more  notable  than  this 
is  reached  in  the  chief  work  of  a  pre-eminently  great 
thinker  writing  at  the  end  of  the  nineteenth  century. 

Spencer's  sociological  bias  affects  unfavorably  his 
treatment  of  property.  He  does  not  distinguish  between 
private  possession  and  private  ownership,  and  uses  the 
two  terms  indiscriminately.  Both  Spencer's  insight 
into  human  nature  and  his  evolutionary  principles  dis- 
pose him  unfavorably  towards  socialism.  "While  the 
doctrines  of  the  socialists  are  evidently  not  consoling 
biologically,  they  are  at  the  same  time  psychologically 
absurd.  They  assume  an  impossible  intellectual  en- 
dowment." According  to  Spencer  socialism  would  bring 
about  a  compulsory  association  in  which  "the  directors 
would  pursue  personal  advantage  with  undiminished 
self-seeking,"  just  as  Is  done  in  the  present  State  by  the 
employers,  and  there  would  be  "no  strong  union  of  free 
laborers  to  oppose  them,"  —  a  condition  undesirable  in 
the  interests  of  the  laborer  and  from  the  point  of  \'iew 
cf  evolution.2 

Spencer  transfers  a  valuable  observation  from  the 
field  of  biology  to  that  of  sociology:  "Social  evolution 
in  the  distant  future,  as  social  evolution  in  the  past, 
must  submit  to  leave  many  lower  forms  untouched,  as 
it  develops  step  by  step  new  forms  of  society."     The 

^Spencer  himsi'lf  speaks  of  the  luyial  philosopliical  basis  which  he 
sets  forth  in  §  5iM  as  "a  somewhat  parenthetical  discussion."    (§'535.) 

2  "I'roni  I'rcc'doni  1o  liondaijr,"  ]).  15,  in  "Introduction  to  Thomas 
Mackay":  "A  Plea  for  Liberty,"  N.  Y.  lSi)l.  (Cerman  ed.  by  Bode, 
|).  17.)  "Metamorphosis  is  tiic  universal  law  exemplified  through- 
out the  Heavens  and  on  the  I-larth:  especially  throughout  the 
oryanic  world;   and  above  all  in  the  animal  division  of  it." 


§42]  SOCIOLOGICAL  EXTREMISTS  323 

fact  that  rudimentary  vestiges  of  lower  stages  of  cul- 
ture survive  in  higher  stages  shows  clearly  the  falsity 
of  a  utilitarian  philosophy  of  law  and  government  as 
well  as  of  a  utilitarian  ethics.  Law,  government,  ethics, 
society  are  cultural  phenomena  whose  function  it  is  to 
increase  human  efficiency.  The  stronger  presupposes 
the  weaker  element;  along  with  the  powerful  there  must 
always  be  the  weaker.  The  weaker  represents  the  waning 
survivals  from  earlier  stages.^ 

§  42.  Sociological  and  Social-ethical  Extremists.  1 : 
The  Conception  of  "Society."  Current  scientific  phrases 
are  but  vaguely  understood  by  the  majority,  have  a 
definite  meaning  to  a  small  minority,  and  are  correctly 
grasped  only  by  the  select  few.  In  the  period  following 
the  Middle  Ages  the  phrases  "sovereignty  of  the  people," 
"liberty,"  "reason,"  were  current;  they  represented  a 
composite  of  vagueness,  error,  and  truth.  Since  Saint- 
Simon,  "society"  has  enjoyed  a  similar  vogue.  As  used 
by  Saint-Simon,  the  term  was  a  proper  substitution 
for  State,  for  it  was  his  purpose  to  establish  an  earthly 
kingdom  governed  by  neighborly  love,  without  legal 
coercion,  and  consequently  without  a  State.  He  defines 
society  as  a  communal  association  organized  without 
legal  or  governmental  coercion.  The  term  "society" 
is  likewise  justified  when  applied  to  the  ideal  community 
by  communistic  anarchists,  who  believe  that  with  the 
abolition  of  government,  law  and  capital,  men  would 
regain  their  natural  innate  good  will  which  the  State 
has  corrupted.    But  the  use  of  the  term  by  the  socialists, 

^  In  regard  to  these  rudimentary  organs  in  the  human  organism 
which  in  the  biological,  and  partly  in  the  social  sense,  are  no  longer 
useful  but  harmful,  see  Metchnikoff,  "Studien  über  die  Natur  des 
Menschen.  Eine  Optimistische  Philosophie."  Authorized  edition 
from  the  French.  Introduction  by  Wilhelm  Ostwald,  Leipzig  1904. 
Pp.  3-177  ("Die  Disharmonien  der  Natur  des  Menschen").  Metch- 
nikoff is  a  professor  in  the  Pasteur  Institute  at  Pan's, 


324  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

as  applied   to  their  prospective  State,  is  false,  for  the 
socialistic  State  is  not  a  free  State  but  a  Leviathan. 
They  propose  to  regulate  production  and  consumption 
by  law,  and  use  the  term  "society"  as  a  demagogic 
device;  for  the  proposal  to  abolish  the  present  form  of 
the  State  sounds  more  inviting  if  the  proposed  substi- 
tute does  not  bear  the  name  of  State.    Sociologists  use 
the  term  "society"  for  all  types  of  human  association, 
including  the  State  as  a  social  group ;  and  they  use  the 
term  "sociology"  as  equivalent  to  political  science  in 
other  than  its  formal  legal  aspects.     The  term  "society" 
is  thus  used  to  designate  very  differently  constituted 
groups;   it  is  applied  to  the  associations  peculiar  to  an 
age  antecedent  to  the  establishment  of  the  State,  and 
to  the  State  itself  after  its  establishment  and  develop- 
ment as  a  society  regulated  by  law.     If  the  afifiiliations 
within  the  horde  or  tribe,  out  of  which  the  State  was 
formed,  are  to  be  called  society,  then  such  early  types 
of  society  must  not  be  used  interchangeably  for  society 
as  a  constituent  of  the  State.     In  current  usage  society 
stands  indiscriminately  for  pre-governmental  affiliations, 
for  the  community  as  shaped  by  law  and  government, 
for  the  several  independent  associative  groups  within 
the  State,  and  for  them  collectively.     The  evolution  of 
society  is  constructed  by  tracing  the  stages  of  growth 
from  the  pre-governmental  groups  to  the  State  as  at 
present  constituted.     That   is   a   convenient   mode   of 
avoiding  the  fundamental  problems  of  law  and  govern- 
ment:   the  State  is  sim])ly  set  down  as  a  differentiated 
highly  developed  form  of  society  as  compared  with  the 
pre-governmental  social  groups.    This  looseness  of  usage 
is  paralleled    and  still   further   favored    by  the  elastic 
meaning  attached  to  the  term,  "social  ethics." 

In  view  of  the  violence  thus  done  to  the  concc]it  of 
"society,"  it  seems  necessary  to  assign  to  it  its  proper 


§42]  SOCIOLOGICAL  EXTREMISTS  325 

meaning.  Robert  v.  Mohl  ^  (1799-1875)  was  the 
first  to  undertake  a  critical  analysis^  of  "society."  He 
concludes:^  "It  has  thus  been  set  forth  that  these 
affiliations  based  on  community  of  interest  are  distinc- 
tive, and  not  to  be  confused  or  compared  with  the  products 
of  individual  interests,  nor  with  a  corporate  relation 
to  the  State;  they  require  a  distinctive  term,  and  the 
term  'society'  fulfills  the  need.  Social  affiliations  or 
organizations  are  accordingly  the  separate  associations 
that  severally  develop  from  a  given  set  of  interests, 
whether  formally  or  informally  organized;  and  social 
conditions  are  the  results  of  such  association,  as  they 
affect  the  participants  directly,  and  all  others  indirectly. 
Society  thus  becomes  a  comprehensive  concept  embrac- 
ing the  combined  social  institutions  of  a  given  region, 
such  as  of  a  State  or  a  country."  This  view  correctly 
represents  society  as  the  spontaneous  expression  of 
human  interests,  not  in  response  to  law  or  coercion, 
but  by  individuals  or  by  associations  independent  of 
governmental  direction. 

Lorenz  v.  Stein  (1815-1890)  contributed  to  the  study 
of  the  nature  of  society.     He  held  that  "if  society  is 

^  The  conception  of  civil  society  in  Hegel  has  no  relation  to  the 
ambitious  modern  conception.     See  above. 

These  comments  of  Ahrens  ("Naturrecht,"  sixth  edition,  Vol.  II, 
pp.  253-262)  are  not  important. 

2  "Die  Geschichte  und  Literatur  der  Staatswissenschaften,"  I, 
pp.  72-110.  See  also Bluntschli,  "Über  die  neuen  Begründungen  der 
Gesellschaft  und  des  Gesellschaftsrechtes"  ("Überschau  der  Deut- 
schen Gesetzgebung  und  Rechtswissenschaft,"  Vol,  III,  Munich 
18.56,  pp.  247-251).  v.  Treitschke,  "Die  Gesellschaftswissenschaft. 
Ein  kritischer  Versuch,"  Leipzig  1859,  pp.  65  seq.  According  to 
Treitschke  the  State  is  unified  organized  society  (pp.  87  and  81-84). 
Gnmplowicz,  "Allgemeines  Staatsrecht,"  Innsbruck  1897,  pp.  176- 
178.     Jellinek,  "Allgemeine  Staatslehre,"  pp.  81  seq. 

2  "Die  Geschichte  und  Literatur,"  etc.,  pp.  100  seq. 


326  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vil 

in  fact  something  more  than  an  unorganized  and  acci- 
dental aggregate,  and  is  an  independent  and  distinctive 
expression  of  human  interests,  then  it  will  be  possible 
to  fix  upon  a  single  and  unified  definition  combining  its 
varied  issues;  such  a  dominant  concept  is  that  of 
'society.*  "  "Every  association  of  men  is  in  a  sense  a 
society;  all  societies,  however  different,  must  contain 
a  common  factor."  ^  "The  social  order  as  shaped  by 
the  distribution  of  human  problems  and  advantages, 
safeguarded  by  the  law,  and  secured  in  perpetuity  by 
property  and  the  family,  constitutes  human  society."  ^ 
"Through  modern  society  the  quantity  and  quality  of 
the  most  desirable  aids  to  life,  as  well  as  the  advantages 
of  life,  have  been  made  available  and  perfected  to  an 
unprecedented  measure,  and  nations  have  been  made 
w^ealthy  and  free  beyond  anything  known  in  the  past. 
But  the  distribution  of  the  possessions  of  wealth  and 
of  liberty  is  not  determined  by  the  principle  of  the 
highest  development  of  the  individual,  but  is  regulated 
by  the  law  which  controls  the  use  of  capital  in  enter- 
prises; namely,  that  the  social  order  rests  upon  the 
supremacy  of  capital  over  labor  without  capital."^ 
In  another  connection^  he  says:    "In  addition  to  the 

1  "Der  Sozialismus  und  Kommunismus  des  heutigen  Frankreichs," 
second  edition,  p.  15.  The  first  part  of  the  book  bears  the  sub- 
title:   "Die  Gesellschaft  und  das  Proletariat." 

Compare  with  Stein's  interpretation  of  the  concept  of  society 
Gumplowicz,  "Allgemeines  Staatsrecht,"  pp.  176,  182-185.  Jel- 
linek,  "Allgemeine  Staatslehre,"  p.  81. 

2  "Der  Sozialismus,"  etc.    j).  23. 

'  "Der  Sozialismus,"  etc.,  pp.  38  seq. 

*  In  his  work  on  the  social  movement  in  I^anre:  "Von  1789  bis 
auf  unsere  Tage,"  3  vols.  Leipzig  1S50.  X'oi.  I:  "Der  Begriff  der 
(iesellschaft  und  die  soziale  (jeschichle  der  französischen  Revolu- 
tion bis  zum  Jahre  1830." 


§42]  SOCIOLOGICAL  EXTREMISTS  327 

direct   action   and   expression   of   the   State   there   is  a 
life  of  the  State."     This  life  is  "society."  ^ 

The  objects  of  ownership,  and  consequently  owner- 
ship itself,  are  of  three  kinds:  landed  property,  money, 
and  industrial  wealth,  or  so-called  standing  or  fixed 
capital.  These  in  turn  may  be  subdivided.  "Among 
the  well-to-do  the  kind  of  wealth  affects  the  sphere  of 
the  individual's  activity;  the  amount  of  wealth  affects 
his  station."  Labor  presents  similar  distinctions;  "even 
more  than  wealth  it  forces  the  individual  to  accommo- 
date himself  to  its  demands;  and  the  kind  of  labor 
conditions  the  type  of  personal  development."  The 
mode  of  living  as  conditioned  by  material  possessions 
in  turn  conditions  the  general  range  and  manner  of  life, 
and  is  perpetuated  through  the  family  from  one  genera- 
tion to  another.  "This  organic  unity  of  life  conditioned 
by  the  distribution  of  wealth,  mediated  by  the  organiza- 
tion of  labor,  sustained  by  human  needs,  and  fixed  by 
legal  institutions  and  family  tradition,  is  human  society." 
In  V.  Stein's  exposition  the  conception  ^  of  society  shows 
the  modern  tendency  unduly  to  extend  its  meaning,  and 
to  include  the  functions  of  government  and  law  and 
national  economics.  In  the  works  ^  of  R.  Gneist 
(1816-1895),  the  celebrated  writer  on  public  law,  the 
sphere  of  society  is  considered.  "French  precedent 
gives  the  term  'society'  the  meaning  of  the  relation  of 

1  "Der  Begriff  der  Gesellschaft  und  die  Gesetze  ihrer  Bewegung- 
Einleitung  zur  Geschichte  der  sozialen  Bewegung  Frankreichs  seit 
1789."     Of  special  import  are  pp.  XXIV-XXVIII. 

*"Die  Volkswirthschaftslehre,"  second  edition,  Vienna  1878, 
pp.  458  seq. 

*  "Self-government  Kommunalverfassung  und  Verwaltungs- 
gerichte in  England,"  third  edition,  Berlin  1871,  pp.  879  seq.; 
"Der  Rechtsstaat  und  die  Verwaltungsgerichte  in  Deutschland," 
second  edition,  Berlin  1879,  pp.  1  seq.  See  also Gumplowicz,  "Allge- 
meines Staatsrecht,"  p.  185. 


328  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

man  to  material  possessions,  and  gives  the  term  'social 
relations'  the  meaning  of  the  aggregate  of  men's  rela- 
tions to  one  another.  Amid  all  tiie  complexities  of 
social  organization,  two  principles  may  be  adhered  to: 
the  one,  that,  since  every  kind  of  wealth  results  in  the 
dependence  of  those  who  are  without  it,  those  who 
1  ave  it  will  do  all  in  their  power  to  establish  and  con- 
tinue such  dependence;  the  other,  that  the  dependent 
will  equally  endeavor  to  diminish  and,  if  possible,  to  do 
away  with  such  dependence.  The  clash  of  class  interests 
can  be  adjusted  only  through  State  regulation.  Hence 
society  and  the  State  are  permanently  opposed.  The 
State,  especially  in  its  service  as  a  communal  self- 
government,  serves  to  unite  ^  the  interests  of  society."  ^ 
Following  V.  Stein  and  Gneist  some  contemporary 
writers  conceive  society  as  an  organism,  as  the  body 
social,  as  an  independent  reality;^  but  others,  such  as 
Gumplowicz,^  recognize  the  presence  of  varied  interests 

1  "Self-government,"  pp.  880,  881;    "Der  Rechtsstaat,"  p.  10. 

2  For  Tunnies  and  Klöppel  see  below,  §  44.  See  also  the  article  by 
Gothein  in  "Handwörterbuch  der  Staatswissenschaften"  on  "Gesell- 
schaft und  Gesellschaftswissenschaft,"  Vol.  IV,  pp.  200-216;  for 
the  concept  of  society,  200-203. 

'  The  organic  and  supcrorganic  conception  of  society  is  set  forth 
by  Sella ffle,  Worms,  Giddings  ("The  Principles  of  Sociology,"  New 
York  1896,  pp.  420),  and  others.  See  below,  §  44.  See  also Z^-w^^r, 
"Die  Gesellschaft,"  2  vols.,  Berlin  1903,  pp.  27-80.  (pp.  36-52 
are   upon  the   "objective   existence  of  social  structures.") 

* Cumplowicz,  "Grundriss  der  Soziologie,"  Vienna  1885,  p.  139: 
"If  one  considers  the  aggregate  of  the  several  groups,  circles,  classes, 
and  occupations  that  reach  their  development  in  the  State,  and 
their  mutual  actions  and  reactions,  one  may  give  to  this  totality 
the  general  name  of  society,  in  contrast  to  the  State.  In  this 
sense  society  is  not  something  different  from  the  State  but  the  State 
itself  from  another  point  of  view.  In  the  narrower  and  stricter 
sense  .society  refers  to  every  one  of  such  groups  that  is  distinctive 


§42]  SOCIOLOGICAL   EXTREMISTS  329 

as  represented  by  those  interested,  but  do  not  regard 
such  interests  as  independent  of  the  State  and  State 
interests,  though  admittedly  the  two  are  occasionally 
divergent,  nor  as  justifying  their  consideration  as  a 
distinctive  organic  unity. 

If  it  were  only  a  matter  of  substituting  another  word 
for  a  vague  or  unjustifiable  concept,  the  opoosition  to 
the  extreme  extension  of  the  term  "society"  would  be 
a  mere  academic  effort.  The  question  of  terms  is  of 
slight  importance ;  writers  on  government  and  economics 
may,  if  they  choose,  call  the  interests  of  political  economy 
those  of  "society,"  or  use  any  other  preferred  expression. 
But  it  is  a  different  matter  when  the  misleading  term 
leads  to  a  false  theoretical  construction.  In  my  some- 
what heretical  opinion  such  is  the  fact;  and  I  shall 
venture  to  state  briefly  my  objections  to  the  prevailing 
view  of  "society."  That  a  notable  change  of  material 
conditions  has  taken  place  as  a  result  of  the  increase  of 
working  capital  and  of  the  exploitation  of  the  laboring 
classes  consequent  upon  the  introduction  of  machinery, 
is  clear;  but  that  such  change  invalidates  legal  pro- 
cedures and  principles  of  government  is  yet  to  be  shown. 
It  is  far  more  likely  that  the  present  reconstruction  of 
economics  will  prove  to  be  a  stage  of  transition,  which, 
in  due  course,  will  furnish  a  theoretical  support  for  the 
improvement  of  the  lot  of  a  class  whose  legal  and  political 
status  has  been  unduly  neglected.  It  is  a  further 
objection  to  the  prevalent  interpretation  of  sociology 
that  its  procedure  was  modeled  upon  that  of  the  natural 
sciences.  A  philosophy  of  government  and  law  which, 
judged  by  the  spirit  of  its  procedure,  may  be  applied 

by  virtue  of  its  common  interest  or  interests.  In  brief,  it  is  a  group 
held  together  by  one  or  more  interests."  See  also  Cumploivicz, 
"Soziologie  und  Politik,"  Leipzig  1892,  pp.  49-66,  72-75.  "All- 
gemeines Staatsrecht,"  pp.  170-198.     See  also  below,  §  44. 


SLO  SOCIOLGGIC/.L  FHILOSOPHIES    [Cii.  vii 

biology,  or  ethnology,  or  indeed  anything  but  philosophy, 
may  properly  be  viewed  with  suspicion. 

Government,  law,  and  ethics  have  a  place  among  the 
distinctive  factors  of  culture.  We  may  call  the  affilia- 
tions of  men  as  they  existed  before  government  was 
instituted,  society,  —  the  term  thus  standing  for  the 
social  alliances  of  men  in  uncivilized  and  semi-civilized 
stages,  - — but  to  call  human  alliances  existing  under  the 
State  and  the  rule  of  law  one  species  of  this  same  genus, 
and  the  forms  of  animal  society  yet  another,  is  to  adopt 
a  zoological  or  biological  procedure,  and  not  a  philo- 
sophical one.  To  consider  society  organized  under 
government  and  pre-governmental  society  as  contrasted 
but  not  co-ordinate,  is  no  more  pertinent  than  to  classify 
man  as  a  species  of  the  genus  animal  or  mammal;  for 
the  purposes  of  the  natural  history  of  man  this  is  legiti- 
mate, but  not  for  the  philosophical  interpretation  of 
culture.  The  student  of  government  or  law  can  no  more 
assume  that  man  is  merely  a  more  highly  organized 
animal,  without  running  the  risk  of  reaching  strange 
conclusions,  than  can  the  historian  of  civilization  or 
the  moralist.  If  we  except  the  reactionaries,  such  as 
Rousseau  in  his  earlier  period,  and  Stirner,  and  perhaps 
Tolstoi,  and  the  strenuous  Nietzsche,  legal  philoso- 
phers arc  agreed  that  the  pre-governmental  condition 
demands  consideration  merely  as  an  evolutionary  stage 
in  the  historical  development  of  government,  of  law, 
of  ethics,  of  civilization.  Quite  independently  of  the 
question  of  desirability,  the  conditions  as  organized 
wilhiii  the  State,  and  those  that  prevailed  where  no 
government  existed,  cannot  be  regarded  as  of  parallel 
status.  It  is  equally  idle  to  construct  a  new  legal  dis- 
pensation based  on  the;  assumed  claims  of  social  welfare. 
State,  law,  economics,  and  society  nuist  be  concci\'ed 
and  inter])reted  as  cultural  developments  according  to 


§42]  SOCIOLOGICAL  EXTREMISTS  331 

the  standards  of  our  existing  civilization,  and  not  accord- 
ing to  those  of  another  world,  which,  however  preferable, 
is  unreal  and  visionary.  In  the  world  as  it  is,  govern- 
ment and  law  give  the  setting  and  conditions  for  economic 
operations.  The  residual  phenomena,  representing  so- 
ciety and  social  interests,  are  the  aggregate  of  the 
situations,  associations,  and  activities,  directed  to 
freely  developing  interests,  the  manifold  operations 
and  relations  of  all  citizens,  apart  from  those  fostered 
and  maintained  by  governmental  or  legal  organization. 
Subtract  from  the  collective  activity  of  a  community 
under  governmental  organization  the  direct  issues 
secured  and  conditioned  by  the  law,  and  the  rest 
is  society.^  The  weaknesses  of  sociology  are  doubt- 
less those  of  a  youthful  science.  In  older  views  and 
conditions,  the  interests  and  service  of  social  organiza- 
tions had  been  neglected;  it  is  natural  that  a  movement 
aiming  to  assert  the  value  of  these  social  interests  should 
in  its  enthusiasm  overshoot  the  mark. 

2:  Social  Ethics.  The  practical  bearing  of  the  socio- 
logical attitude  finds  expression  in  what  is  commonly 
known  as  "social  ethics."  The  principle  of  economic 
materialism,  and  particularly  of  socialism,  drew  the 
attention  of  central  Europe  to  the  question  whether,  in 
fact,  formal  equality  before  the  law  resulted  in  economic 
justice.  There  was  much  evidence  that  a  rigid  adherence 
to  a  formal  legal  equality,  and  the  unrestricted  pursuit 
of  commerce,  had  resulted  in  the  oppression  and  exploita- 
tion by  unscrupulous  capitalists  of  the  economically 
weaker  classes,  the  industrial  laborer,  and  of  the  economi- 
cally weaker  individuals  subject  to  the  exactions  of  the 

1  See  the  admirable  account  of  Jellinek,  "Allgemeine  Staatslehre," 
pp.  84-89.  Jellinek  is  one  of  the  few  economic  philosophers 
who  recognize  the  extreme  and  ambitious  conception  of  society, 
advanced  by  the  sociologists. 


332  SOCIOLOGICAL  PHILOSOPHIES  [Cn.  VII 

stronger.  The  situation  induced  a  powerful  movement 
in  the  direction  of  social  reform;  in  Germany  it  brought 
about  the  labor  insurance  laws  (inaugurated  through  the 
initiative  of  Bismarck  by  the  imperial  messages  of  Nov. 
17,  1881,  and  April  14,  1883),  as  well  as  other  reforms 
of  industrial  legislation  for  the  protection  of  the  laborer. 
The  commendable  purposes  of  social  reform  may  be 
said  to  consist  of  the  economic  liberation  through  legal 
reforms  of  the  economically  dependent  classes,  and  the 
infusion  of  the  law  with  the  ethical  spirit,  by  framing 
laws  to  prevent  the  exploitation  of  the  economically 
dependent.^  Every  friend  of  progress  will  regard  with 
sympathy  all  efforts  in  behalf  of  the  economically 
weaker  classes  and  individuals,  and  every  attempt  to 
check  the  exploitation  that  takes  shelter  under  the  law. 
But  the  thoughtful  student  views  with  misgiving  the 
brand  of  practical  philosophy  now  in  vogue  and  its 
dire  possibilities.  The  words  "social  reform"  and 
"social  ethics"  are  bandied  about  by  all  sorts  and  condi- 
tions of  men;  and  even  the  intelligent  among  them, 
including  political  economists  and  officers  and  adminis- 
trators of  the  law,  connect  no  definite  notion  with  these 
terms  which,  indeed,  seem  to  stand  for  a  tendency  to 
favor  the  man  without  property  and  without  means, 
especially  if  he  belongs  to  the  laboring  classes,  as  against 
the  economically  stronger  capitalist;    and  to  do  so  only 

*  See  the  account  of  the  recent  nio\ement  in  Ix'lialf  of  political 
welfare  in  Van  derBorgJit,  "Cruncizii^ne  der  Soziaipoiilik"  (Franken- 
stein- Ileckel,  "Wand-  und  Lehrl)uch  der  Staatswissenschaft,"  I,  15), 
Leipzig  1904  (Part  II:  "Arbeiter  W'ohlfahrtspolitik,"  pp.  87-445; 
Part  IV:  "VVohlfahrtspoHtik  in  Bezug  auf  sonstige  Personen  in 
unselbständiger  Arbeitsstelhing,"  pp.  483-519).  Bibliography,  pi). 
.520  50(5.  See  also  in  "l  Iandw(')rlerbuch  der  Staatswisseiisehaften," 
second  edition,  V(jI.  II,  pp.  921  923,  9:«)  939,  the  article  "Bismarck" 
(by  II.  Dietzel),  the  division  "Sozialpolitik,"  and  Vol.  VI,  pp.  828- 
848,  the  article  "Sozialkonservative  Bestrebungen"  (by  G.  Uhlhorn). 


§42]  SOCIOLOGICAL  EXTREMISTS  333 

because  he  is  the  under  dog.  He  is  to  be  favored  in 
legislation,  in  judicial  decisions,  in  administration,  in 
business,  in  contracts,  and  in  daily  intercourse.  The 
sound  principle  of  social  ethics,  that  the  law  must  afford 
protection  against  economic  enslavement  or  exploitation, 
is  to  be  made  over  into  a  feeble  and  indefensible  prin- 
ciple of  social  compassion,  a  principle  the  more  willingly 
enforced  as  it  is  exercised  at  another's  expense.  Neither 
in  theory  nor  in  practice  can  this  extreme  application 
of  the  social-ethical  attitude  be  justified.  Its  accep- 
tance is  due  to  an  unwarranted  extension  of  the  concep- 
tion of  society,  and  as  well  to  the  lack  of  clear  views  of 
political  economy  among  those  not  affected  by  the 
socialistic  movement.  It  may  be  referred  to  the  exten- 
sion of  the  spirit  of  romanticism  into  political  economy, 
swayed  by  an  emotional  antagonism  to  capital.  Its 
purposes  are  as  uncertain  as  its  foundations;  and  the 
outcome  of  this  social-ethical  sentimentality  cannot  be 
viewed  with  complacency.^ 

3:  Sociological  Ideals.  The  comprehensive  and  thor- 
ough survey  of  Ludwig  Stein  ^  (b.  1859),  "Die  Soziale 
Frage  im  Lichte  der  Philosophie,"  graphically  pre- 
sents, with  a  wealth  of  illustrative  material,  the  views  on 
sociological  questions  of  philosophers  and  economists 
from  the  earliest  times  up  to  the  present  day.  Stein 
represents  a  social  optimism.^  Optimism  cannot  be 
justified  on  the  principle  of  hedonism.     "Any  balance 

1  See  below,  §  45. 

2  The  following  works  of  Ludwig  Stein  are  here  pertinent:  "Die 
soziale  Frage  im  Lichte  der  Philosophie,"  Stuttgart  1897,  second 
edition,  1903.  "An  der  Wende  des  Jahrhunderts.  Versuch  einer 
Kulturphilosophie,"  Freiburg  i/B  1899.  "Der  soziale  Optimismus," 
Jena  1905. 

^"Die  soziale  Frage,"  etc.,  Lecture  41:  "Der  soziale  Optimis- 
mus," pp.  563-584.  Stein,  "Der  soziale  Optimismus,"  pp.  1-27, 
126-154.  218-238. 


334  SOCIOLOGICAL   PHILOSOPHIES    [Ch.  Vll 

struck  between  pleasure  and  displeasure  is  illusory."  ' 
Optimism  is  not  to  be  demonstrated  logically;  the 
optimistic  tendency  is  "the  great  pledge  of  future  joys, 
a  KTTJfxa  CIS  deS  an  inalienable  possession  of  mankind."  ^ 
The  movement  of  human  ideas  as  revealed  by  the 
comparative  study  of  history  is  spiral;  it  advances  at 
once  forward  and  upward.  "The  evolutionary  optimism, 
which  is  characteristic  of  Hegel,  no  less  than  of  Leibnitz 
before  him,  and  of  Eduard  v.  Hartmann  after  him, 
projects  the  movement  of  ideas  not  as  a  circle  but  as  a 
spiral."  To  social  optimism  the  alternative  between 
the  individual  or  the  race  is  not  final;  neither  the 
extreme  indi\'idualism  of  Nietzsche,  nor  the  extreme 
communistic  view  of  life,  will  hold  good.* 

The  moralist  cannot  escape  the  question:  Are  there 
any  ultimate  purposes?  Why  should  we  lead  a  moral 
life?  In  order  to  be  happy.  How  shall  we  be  moral? 
By  recognizing  the  connection  between  the  cosmos  and 
human  destiny,  between  the  world  of  nature  and  the 
world  of  spirit.  "The  insight  into  this  connection 
imbues  man  with  strength  to  curb  his  selfish  impulses, 
to  refine  his  instincts,  and  thereby  to  eliminate  every 
vestige  of  his  original  ]iredatory  nature."  The  goal  of 
evolution  is  the  refinement  of  the  human  type.^  The 
goal  of  external  politics  is  to  make  our  civilization 
prevail  universally;^  this  will  l)ecome  realized  through 
a  world  federation,    while  tlie  goal  of  internal  i)olilics 

^  "Die  soziale  Frage,"  pp.  .'")():>  fjTO. 

2".'\n  der  Wende  des  Jahrliiiiulerls,"  pp.  ;«G-347,  211,  212- 
230.     "Die  soziale  Frage,"  pp.  5(53  r)S4. 

'"An  der  Wende  des  JahrhiinikTts,"  pj).  233,  270  seq.,  240,  233- 
241. 

*  "Die  soziale  Frage,"  ])\).  .'")S3  sccj. 

'"An  der  Wende,"  etc.,  i)p.  ;'.'.)l  seq.  "Die  soziale  Frage,"  pp. 
562  se(|. 


§42]  SOCIOLOGICAL   EXTREMISTS  335 

is  to  bring  about  a  reign  of  peace  through  unceasing 
social  effort.^ 

Paul  Bergmann's  "Ethik  als  Kulturphilosophie" '^ 
presents  substantially  the  same  views  as  Stein,  but  re- 
turns to  Kant  for  support  of  the  fundamental  basis.  The 
supreme  injunction  is  thus  expressed:  "On  all  occasions 
do  your  individual  and  social  duty";  or  expressing  the 
two  separately:  "Always  act  in  complete  accord  with 
yourself  as  a  moral  personality";  and,  "Always  place 
yourself  at  the  service  of  the  community  to  which  you 
belong."^  The  object  of  morality  is  the  completest 
realization  of  the  ideal  of  culture,^  the  participation  in, 
and  furtherance  of  the  progress  of  civilization. 

Van  Calker^  (b.  1864)  makes  human  perfection 
the  guide  of  political  endeavor.  He  bases  it  on  the  sense 
of  evidence  ^ — •  "Gefühl  der  Evidenz" —  the  innate  trend 
which  makes  the  idea  of  perfectibility  appear  as  a  com- 
mendable aim.  This  ethical  principle  should  be  applied 
in  penology;^  the  penal  law  should  be  made  to  conform 
to  the  standard  of  a  just  retribution.  Van  Calker's 
principle  of  perfection  has  been  applied  to  penology  by 
Netter.7 

^  "An  der  Wende,"  etc.,  pp.  392  seq.,  410  seq.  "Die  soziale 
Frage,"  pp.  551-562,  457-496,  496  seq. 

2  Leipzig  1904,  especially  pp.  274-475. 

^  "Ethik  als  Kiilturphilosophie,"  pp.  474  seq. 

^  See  below,   §  44. 

^  "Politik  als  Wissenschaft,"  Address  of  January  27,  1898, 
Strassburg  1898,  pp.  16-21,  37,  20. 

*5.  van  Calker,  "Strafrecht  und  Ethik,"  Leipzig  1897,  pp.  12- 
16,  16-22.  Also  Berolzheimer,  "Die  Entgeltung  im  Straf  rechte," 
pp.  99  seq. 

"^  "Das  Prinzip  der  Vervollkommnung  als  Grundlage  der  Straf- 
rechtsform," Berlin  1900,  especially  pp.  346  seq.  Pp.  253-260 
contain  the  historical  presentation  of  the  principle  of  perfection. 
On  V.  Calker's  influence  see  pp.  355  and  preface,  p.  VI. 


336  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

§43.  Social  Utilitarianism.  1 :  Shaftesbury.  Shaftes- 
bury ^  (1671-1713),  the  English  moralist,  bases  his  ethics 
on  the  following  considerations:  "Every  creature  [has] 
a  private  good  and  interest  of  his  own,"  what  Diderot 
calls  "un  interet  prive,  tin  bien-etre  qui  lui  est  propre," 
representing  the  satisfaction  of  his  desires  as  determined 
by  his  nature.  If  the  natural  expressions  of  inclination, 
emotion,  or  passion  are  thwarted,  it  reacts  disturbingly 
upon  the  welfare  of  the  organism;  and  if  the  untoward 
status  of  its  emotional  life  reacts  to  the  disadvantage 
of  other  beings,  the  result  is  likewise  unfavorable  to  the 
general  welfare.  If  the  same  disturbed  emotional  state 
affects  the  vital  interests  both  of  the  being  primarily 
concerned  and  of  others  who  cross  his  path,  and  if  the 
favorable  regulation  of  his  natural  disposition  would 
servehisown  welfare  and  thatof  others,  then  the  favorable 
interest  of  others  coincides  with  concern  for  his  own 
welfare,  and  private  interest  is  in  harmony  with  mor- 
ality.^ Accordingly  virtue  not  only  leads  to  the  happi- 
ness of  the  virtuous  but  likewise  to  the  welfare  of  the 
community.  Vices  make  the  individual  unhappy  and 
weaken  the  bond  that  attaches  him  to  the  community.' 

^Shaftesbury,  "An  inquiry  concerning  Virtue  and  Merit,"  1699. 
I  cite  from  the  collected  works  of  Shaftesbury,  "Characteristics  of 
Men,  Manncrs,Opinions,  Times,  with  a  Collection  of  Letters,"  Vol.11, 
Basle  1790;  translated  into  F"rench  by  Diderot  under  the  title 
"Principes  de  la  Philosophie  Morale  ou  Essai  sur  le  Merite  de  la 
Vertu,  par  Mylord  S."  .  .  .  (Shaftesbury).  A  German  translation 
from  the  French  bears  the  title  "Über  Verdienst  und  Tugend,  ein 
Versuch  von  Shaftesbury,"  Leipzig  1780. 

"Book  II,  Part  II,  §  1. 

^Book  II,  Part  II,  §  1 :  "How  unfortunate  must  it  be  for  a  crea- 
ture, whose  dependence  on  society  is  greater  than  any  others,  to 
lose  that  natural  affection  by  which  he  is  prompted  to  the  good  and 
interest  of  his  species  and  community?  .  .  .  For  whoever  is  un- 
sociable, and  voluntarily  shuns  society  or  conuiierce  with  the  world, 
must  of  necessity  be  morose  and  ill-natured." 


§43]  SOCIAL    UTILITARIANISM  337 

Briefly,  vices  are  anti-social  impulses.  Shaftesbury 
traces  vices  to  three  sources:  to  weak  and  defective  natu- 
ral affections;  to  the  predominance  of  private  interests; 
or  to  the  fact  that  the  natural  affections  tend  neither 
to  the  special  interest  of  the  individual  nor  to  the  gen- 
eral welfare  of  the  species.^  Vice  disturbs  individual 
well-being  as  well  as  the  welfare  of  the  community; 
while  the  social  inclinations,  or  the  communal  feeling 
which  is  inherent  in  human  nature,  form  the  source  of 
ethical  values. 

This  same  emphasis  upon  the  concurrence  of  private 
with  communal  welfare  appears  in  the  social  philosophy 
of  Ihering;  he,  however,  does  not  assign  the  decisive 
part  to  the  ethical  sentiment  and  its  practical  expres- 
sion, but  to  the  self-centered  impulses  which  are  directed 
to  personal  welfare  and  at  the  same  time  further  the 
welfare  of  the  community. 

2:  Ihering.  Ihering's  ^  (1818-1892)  chief  work, 
"Der  Zweck  im  Recht,"  was  preceded  by  the  "Geist 

See  Book  II,  Part  II,  §2,  beginning  with  the  words:  "We  are 
now  to  prove,  that  by  having  the  self-passions  too  intense  or  strong, 
a  creature  becomes  miserable."  This  is  then  proven  by  various 
illustrations. 

^  Book  II,  Part  II,  §  3.  Shaftesbury,  as  he  notes  at  the  end  of 
the  section,  proposes  to  establish  the  following  thesis:  — 

I.  "That  to  have  the  natural,  kindly,  or  generous  affections 
strong  and  powerful  towards  the  good  of  the  public,  is  to  have  the 
chief  means  and  power  of  self-enjoyment,"  and  "That  to  want  them, 
is  certain  misery  and  ill." 

II.  "That  to  have  the  private  or  self-affections  too  strong,  or 
beyond  their  degree  of  subordinacy  to  the  kindly  and  natural,  is 
also  miserable." 

III.  And,  "That  to  have  the  unnatural  affections,  viz.,  such  as  are 
neither  founded  on  the  interest  of  the  kind,  or  public,  nor  of  the 
private  person  or  creature  himself,  is  to  be  miserable  in  the  highest 
degree." 

*  The  works  here  pertinent  are  "Zweck  im  Recht,"  1  vol.,  third 
edition,  Leipzig  1893;     \'ol.  II,  second  edition,  1SS6,  third  edition, 


338  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

des  Römischen  Rechts,"*  which  formed  a  notable  con- 
tribution to  the  study  of  Roman  law,  and  of  its  histori- 
cal and  philosophical  evolution.  Though  neither  work 
was  completed,  the  earlier  work  may  be  regarded  as 
finding  its  complement  in  the  later,  which  begins  by 
considering  the  nature  of  human  conduct.  The  law 
of  causality,  which  acts  mechanically  in  the  natural 
world,  when  applied  to  the  human  will  becomes  a  psycho- 
logical law.  A  stone  falls  because,  deprived  of  its  sup- 
port, it  must  fall.  "Human  conduct  is  determined  not 
by  a  'because'  butjby  a^r^/  by^a  purpose  to  be  effected; 
the  'for'  is  as  indispensable  for  the  will  as  is  the  'because' 
for  the  stone.  The  stone  cannot  move  without  a  cause; 
no  more  can  the  will  operate  without  a  purpose."  Hence 
the  law  of  causality,  asapplied  to  the  human  will,  becomes 
the  psychological  law  of  purpose,  "Zweck-gesetz."  The_ 
purpose  is  the  motivating  incentive  of  the  human  will. 
The  will  does  not  act  without  a  purpose;  to  act,  and  to 
act  as  a  means  to  an  end,  are  one  and  the  same. 

The  direction  (f  desire  exclusively  to  self-interest  is 
called  egoism.  Such  self-seeking  is  incompatible  with 
larger  ends,  but  is  utilized  by  these  ends  in  that  they 
"enlist  it  in  their  service  by  paying  it  the  wages  which 
it  demands."  The  larger  interests  secure  the  co-opera- 
tion of  the  individual  by  interesting  him  in  their  pur- 
p(jiJi:iL    Every  phase athuman  life  —  government,  society, 

1898.  (The  tliird  fdilion,  fiüiu  which  I  cite,  was  published  by  v. 
Ehrenberg  after  the  author's  death.)  Fourth  edition  (tlie  first  in 
poi)ular  form),  2  vols.,  Leipzig  1905. 

"Der  K.iin|if  unis  Reeht,"  fifteenth  edition,  X'ienna  1903.  (I 
cite  from  tiie  thirteenth  edition,  Vienna  1S97.) 

'  "Geist  des  Römischen  Rechts  auf  tlen  Verschiedenen  Stufen 
seiner  Kntwickelung,"  Part  I,  fifth  edition,  I.eipziij  1S94;    Part  II, 

iJivisioii  I,  fiflh  edition,  I.eipzii!;  1891;  Part  II,  Division  II,  fifth 
edition,  lA-ijizig  1S99;     Part    111,  Dixi^ion   IjOurdi  c-dilion,  Leipzig 

1888. 


§43]  SOCIAL    UTILITARIANISM  339 

commerce,  and  business  —  depends  upon  the  interrela- 
tion of  individual  purposes  with  the  interests  of  others. 
If  there  is  no  concurrence  of  selfish  individual  interests 
with  the  general  purpose,  it  must  be  brought  about 
artificially.  In  all  human  intercourse,  including  that 
of  social  life,  the  "lever  of  interest"  may  be  brought 
to  bear  upon  those  unafi^ected  as  well  as  those  directly 
affected.  The  same  is  true  of  communal  purposes,  among 
which  organized  purposes  are  of  the  greatest  practical 
importance;  that  is,  purposes  which  have  an  adequate 
instrument  in  a  permanent  and  regulated  association 
of  those  interested.  Organized _purposea_r£adl„  their 
highest  expression  in  the  State;  the  characteristic  of 
such  purposes  is  ib.eir  extensive  utilization  of  the  law\ 
In  some  cases  the  law  acts  as  a  direct  mechanical  co- 
ercion—  as  the  attachment  of  property  of  a  debtor; 
in  others  it  acts  indirectly  as  a  psychological  coercion  — 
as  by  the  threat  of  a  penalty  or  legal  disability.  Psy- 
chological coercion  is  indirect ;  it  appeals  to  the  interest 
of  the  individual  will  which  is  subjected  to  the  influences 
of  the  law. 

Human  purposes  are  either  individual  or  communal, 
that  is,  social.  The  purposes  "emanating  from  and 
acting  upon  the  individual"  are  the  selfish  ones.  They 
are  of  three  kinds  —  the  assertion  of  the  physical,  of 
the  economic,  and  of  the  legal  self;  or  briefly,  the  asser- 
tion of  the  individual  or  the  ego.  The  purposes  of  the 
communal  life,  including  the  objects  of  the  State,  are 
the  social  ones.  The  activities  of  the  individual  in 
the  furtherance  of  these  communal  purposes  are  appro- 
priately called  "social."  The  individual  is  stimulated 
to  social  conduct  by  an  appeal  to  two  kinds  of  impulses: 
first,  by  an  appeal  to  self-interest —  "The  means  which 
the  State  and  society  employ  to  enlist  the  individual  in 
their  service  are  reward  and  punishment,"  — ■  and  second, 


310  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

by  an  appeal  to  the  ethical  self,  that  is,  "to  the  ethical 
feeling  in  regard  to  the  purpose  of  man's  existence,  the 
conviction  that  his  life  is  to  be  lived  not  for  himself 
alone  but  for  the  service  of  mankind."  The  ethical 
nature  can  alone  account  for  self-denial. 

The  individual's  place  in  the  world  will  be  determined 
by  his  attitude  towards  the  three  following  propositions, 
which  reflect  his  loyalty  to  public  spirit  and  to  law:  / 
exist  for  myself:  or,  The  tuorld  exists  for  me:  or,  /  exist 
for  the  world.  The  egoistic  or  individual  self-assertion 
leads  to  concern  for  physical  well-being.  To  provide 
for  more  than  the  needs  of  the  moment,  men  accumulate 
the  means  of  subsistence  for  future  use.  This  gives  rise 
to  the  amassing  of  property  as  a  form  of  economic  self- 
assertion.  To  safeguard  life  and  property,  law  is  insti- 
tuted. "Without  law  there  is  no  security  of  life  and 
property."  It_is_not  logical  consistency  but  practical 
purposes  that  lead  from  law  to  government.  The  law 
affects  every  phase  of  individual  life.  The  maintenance 
of  the  position  which  the  law  secures  is  legal  self-asser- 
tion. It  concerns  life,  honor,  property,  famil)-,  and  pub- 
lic rights. 

Next  to  the  demands  of  self-assertion,  life  must  be 
viewed  "as  it  concerns  others  or  society";  all  ci^■il- 
ization  depends  upon  making  the  individual  serviceable 
to  the  communal  purposes.  No  man  exists  for  himself 
alone  but  for  the  sake  of  all.  "As  each  individual  exist- 
ence is  due  to  others,  so  likewise  he  exists  for  others, 
whelher  with  his  intent  or  not."  It  is  by  \irlue  of  the 
inlliicnce  which  the  individual  exerts  beyond  the  limits 
of  Ills  own  existence  that  the  progress  of  human  culture 
becomes  possible;  the  legal  asi)ect  of  the  influence  upon 
posterity  takes  the  form  of  inlu'ritancc;.  "Society  is 
the  realization  of  the  position  that  c\('r\'  man  exists 
for   the  world,   and    the   world   exists   for   every   man." 


§43]  SOCIAL    UTILITARIANISM  341 

Tlieoreticall;^^_society  in  part  overlaps  the  sphere  of  the 
State,  "but  in  part  only,  that  is,  to  the  extent  to  which 
the  needs  of  society  require  the  coercive  power  of  the 
State."  Legal  coercion  serves  the  subsidiary  purpose 
of  protecting  the  social  order  from  injury.  Geographically 
the  sphere  of  society  is  not  limited  by  the  boundaries 
of  the  State.  Society  has  the  quality  of  personality, 
though  the  law  cannot  accord  it  the  legal  status  of  a 
person.  "Yet  society  should  not  be  denied  personal 
value  because  it  may  not  serve  legally  as  a  person." 

Social  mechanics,  "the  levers  of  the  social  movement," 
are  the  means  whereby  society  makes  the  individual 
subservient  to  its  pur]:)oses.  Of  such  vsocial  levers,  two  — 
reward  and  coercion  —  a])i)eal  to  self-interest;  and  two 
are  ethical  —  the  sense  of  duty  and  sympat^hy.  Trade 
may  be  regarded  as  an  organized  means  of  "satisfying 
human  needs  by  the  lever  of  reward."  The  needs  sup- 
ply the  motive,  the  reward  is  the  means,  and  the  organ- 
ization of  the  relation  between  the  two  constitutes  trade. 
Trade  is  not  carried  on  upon  the  basis  of  benevolence. 
When  we  are  told  that  in  ancient  Rome  the  intellectual 
professions  were  practised  without  compensation,  this 
means  only  that  the  service  was  not  paid  for  directly. 
The  compensation  came  in  an  ideal  form  by  way  of 
honor,  respect,  popularity,  influence,  power;  the  reward 
was  not  economic  but  moral ;  but  there  was  a  compensa- 
tion. For  the  fundamental  principle  of  trade  is  "quid 
pro  quo."  "The  expression  'contract  of  exchange,' 
'Tausch vertrag,'  which  legally  is  confined  to  the  barter  of 
one  article  for  anoth-er,  applies  to  whatever  has  value." 
The  fact  that  our  needs  differ  leeids  to  exchange ;  the  fact 
that  they  are  in  part  the  same,  leads  to  co-operation, 
when  the  purpose  sought  exceeds  the  power  of  the  indi- 
vidual, or  can  be  attained  more  economically  by  co-opera- 
tion.   The  legal  correlative  of  this  is  "Sozietätsvertrag," 


342  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

partnership  agreement.  The  reward  of  a  contract  is 
determined  by  the  relative  value  of  the  individual  inter- 
ests of  the  contracting  parties.  "The  point  of  equilib- 
rium at  which  the  interests  of  the  parties  balance  is 
the  equivalent  or  price  agreed  upon.  The  equivalent 
represents  the  embodiment  of  the  idea  of  justice  in.trade." 
The  social  regulation  of  self-interest  is  accomplished  by 
competition.  When  social  regulation  of  private  interest 
fails,  possibly  by  reason  of  a  temporary  monopoly, 
individual  interest  is  nonetheless  regulated  by  "a 
consideration  for  the  future";  as,  for  example,  the  con- 
sideration that  future  business  interests  might  be  compro- 
mised by  exploiting  a  momentary  advantage.  But  when 
both  these  regulations  of  private  interest  fail,  and  the 
contract  in  question  threatens  to  give  an  undue  advan- 
tage to  one  party,  the  law  enters  as  a  preventive  or  ad- 
justing agent  in  the  form  of  legal  taxes,  restriction  of 
the  rate  of  interest,  penalty  for  usury.  But  the  action 
of  the  law  alone  is  commonly  inadequate.  Equitable 
compensation  is  determined  and  insured  through  a 
standard  in  consideration  of  the  general  conditions  affect- 
ing a  given  occupation.  Pay  is  not  determined  by  the 
individual  services  alone,  but  compensation  depends 
upon  the  status  of  the  occupation  for  instance,  the  prep- 
aration which  it  requires,  and  the  trouble  and  expense 
which  it  involves.  Organized  trade  finds  a  means  of 
economic  compensation  through  credit,  ])articularly 
commercial  credit.  There  are  honorary  compensations, 
such  as  office  and  reputation,  as  well  as  material  ones, 
rndcr  the  social  organization,  compensation  is  exjiressed 
tluoiigh  trade,  and  coercion  through  the  Slate  and-law. 
Coercion  is  eilhcr  nicclianical  or  ])s\ch<)l()gi(al.  "Accord- 
ing 1()  the  ])uri)()se  s(.i.^li;,  that  is,  wiiether  it  is  negalive 
or  ]»<)sili\'c,  coercioii  is  ])ro])elling  or  comiieliing.  The 
former  aims  to  i)r(jliil)it,  antl  the  hitler  to  ensur*^  a  given 


§4;^]  SOCIAL    UTILITARIANISM  343 

action.  Self-defense  propels,  self-help  compels."  Ij, 
is  governmental  coercion  organized;  side  by  side  with 
it  there  is  an  unci  i^anizcd  "social  form  of  coercion", — 
the  moral.  To  settle  differences  by  establishing  a  "modus 
Vivendi"  binding  upon  both  parties,  to  restrain  power 
withinjimits,  is  tlic  function  of  law.  In  the  early  estab- 
lishment of  the  social  order  the  might  that  prevails  plays 
a  great  part.  In  tracing  the  influence  of  might  in  the 
beginnings  of  social  order,  Ihering  remarks:  "We  can- 
not rely  upon  history,  which  tells  us  nothing  concerning 
this  point,  but  must  accept  purpose  as  our  guide.  The 
study  of  purpose  will  show  how,  in  order  to  prevail,  human  >^ 
ends  depend  upon  might."  Ina  regulated  state  of  society 
propelling  coercion  becomes  operative  in  the  form  of  the 
right  and  duty  of  defense,  and  again  as  self-defense; 
and  in  ancient  systems  of  law,  in  taking  the  law  in  your 
own  hands.  Compulsive  coercion,  as  legally  expressed, 
appears  in  the  authority  of  the  father  over  his  family, 
and  in  contracts  of  ever  increasing  scope.  Purposes  so 
regulated  can  become  effective  only  through  the  coercive 
organization  of  the  law.  Such  legal  coercion  is  indis- 
pensable; the  important  point,  however,  is  not  whether 
it  is  indispensable,  but  whether  it  is  successful.  The 
social  organization  of  force,  concentrated  in  the  law,  is 
effective  only  when  "the  balance  of  power  is  transferred  L-^' 
to  the  side  of  the  law."  This  result  is  attained  through 
association,  "Sozietät,"  which  is  the  "automatic  mechan- 
ism of  power,  measured  in  terms  of  law."  But  socializa- 
tion through  associations  of  all  sorts  would  not  suffice 
to  guarantee  the  complete  success  of  legal  coercion.  That 
requires  the  coercive  power  of  the  State.  "The  State 
is  society  exercising  coercion."  The  State  is  "the  organ- 
ization of  social  coercion."  The  cultivation  of  the  law 
is  the  "vital  function"  of  the  State;  and  legal  coercion 
is  the  "absolute  inonopoly"  of  the  State.     The  external 


344  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vll 

quality  of  law  is  force;  its  inner  quality  is  its  normalizing 
power.  Law  makes  for  order  and  equality.  The  prac- 
tical aim  of  justice  is  to  establish  equality.  Moreover, 
the  aim  of  material  justice,  that  is,  justice  viewed  pri- 
marily as  the  moral  duty  of  the  legislator,  is  to  establish 
inner  or  subjective  equality,  the  balance  of  merit  and 
reward,  or  punishment  and  guilt.  The  fundamental 
object  of  fojmal  justice,  which  primarily  means  law 
practically  administered,  is  to  establish  outer  equality; 
that  is,  uniform  application  to  all  cases  of  an  established 
rule  of  action.  But  equality  before  the  law  is  not  an 
object  in  itself.  It  is  desirable  only  because  such  equality 
is  a  condition  for  the  welfare  of  society.  The  inner 
guaranty  of  justice  is  the  sense  of  right;  the  outer 
guaranty  is  the  administration  of  the  law. 

Norms  or  rules  of  action  and  coercion  are  thus  jthe 
factors  of  the  law.  But  these  are  formal  only,  and, 
decide  nothing  as  to  the  content  of  the  law,  which  is 
determined  by  its  purpose;  hence  the  law  must  regulate 
the  social  conditions.  This  accounts  for  the  constantly 
shifting  character  of  the  legal  content,  which  varies  with 
social  conditions  and  is  subject  to  constant  change.  The 
purpose  of  law  is  to  secure  the  conditions  which  society 
demands.  From  the  point  of  view  of  content,  therefore, 
law  is  the  form  in  which  the  coercive  power  of  the  State 
attains  and  secures  the  conditions  requisite  for  the  social 
life.  In  intent  this  is  ever  the  purpose  of  the  law; 
naturally  the  lawmaker  may  err  in  the  choice  of  the 
means,  as  the  physician  in  the  choice  of  a  remedy. 

The  fundamental  conditions  of  existence  of  society 
are  the  ])rescTvation  and  propagation  of  the  species, 
laltor,  and  Inide.  Normally  these  coincide  with  the 
fundamental  conditions  of  existence  of  the  individual; 
in  so  far  as  they  tend  to  conflict,  it  is  the  province  of 
the   law    to    intervene.      Iluring   extends   this   view   to 


§43]  SOCIAL    UTILITARIANISM  345 

other  realms  of  the  law,  and  attempts  to  show  that  the 
impeUing  motive  of  legal  forms  is  the  welfare  of  society, 
the  securing  of  the  conditions  of  existence,  in  which 
process  he  emphasizes  the  subjective  intent  as  a  factor 
of  the  law."^ 

Crime  has  been  defined  as  an  act  subject  to  ]Hiblic 
punishment,  or  an  act  that  breaks  the  law.  But  this  is 
merely  an  external  definition.  Ihering  tries  to  find  the 
underlying  principle  that  makes  an  action  subject  to 
punishment,  or  the  legislative  principle  defining  crime. 
"The  purpose  of  the  penal  law  is  no  different  from  that 
of  any  other  law:  to  secure  the  conditions  of  existence 
of  society.  It  employs  a  distinctive  means,  which  is 
punishment,  in  the  pursuit  of  this  object.  And  why?" 
The  reason  cannot  lie  in  the  non-observance  of  the  law, 
for  not  all  kinds  of  non-observance  of  the  law  result 
in  punishment.  Crime  is  a  menace  to  the  conditions  of 
existence  of  society  which  legislation  recognizes  as  pre- 
ventable only  through  punishment.  The  menace  is  not 
that  of  the  specific  action  but  the  abstract  menace  inherent 
in  all  that  type  of  action.  The  problem  of  legislative 
regulation  of  punishment  thus  becomes  a  problem  in 
social  politics.  The  decisive  principle  is  that  "punish- 
ment must  be  applied  in  all  cases  in  which  society 
cannot  do  without  it."  The  more  valuable  the  social 
advantage,  the  more  severe  must  be  the  punishment 
for  its  injury.     "The  scale  of  punishment  measures  the 

i"Der  Zweck  im  Recht,"  I,  pp.  3-25;  32-40;  40-46;  47-61;  67; 
62-76,  especially  pp.  65,  73;  77-92;  81;  92;  89;  192  seq.;  93-97;  97; 
100-115;  115-120,  especially  pp.  123  seq.;  124-127,208-225;  131-140, 
133  seq.,  135,  136, 137, 231  seq.;  140-1.56;  1.56-181;  181-193, 194-208; 
193  seq.,  234-258;  especially  234-236,  245,  248,  2.58;  2,58-262;  262- 
264;  264-270;  270-291;  291  seq.;  296,  291-307;  309,  307-312;  318, 
312-320;  320-329;  329  seq.;  352-369;  369;  379  seq.;  435  seq.;  443; 
445-4.50,  449;  453  seq.;  485.  Ihering  considers  criminology  under 
the  title  "Crime"  in  Vol.  I,  pp.  483-504. 


346  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

value  of  social  possessions."  In  assigning  penalties 
there  must  be  considered  not  only  the  objective  factor 
of  the  menace  to  social  possession,  but  the  subjective 
factor  of  the  danger  attaching  to  the  criminal  disposition, 
to  the  actual  commission  of  crime;  such  factors  as 
intent  or  negligence;  crimes  of  passion  or  premeditated 
crimes;  conspiracy;  organizing  criminal  gangs.  Iher- 
ing  classifies  crimes  according  to  the  nature  of  the 
object  menaced,  such  as  crimes  affecting  the  person 
—  injury  to  life,  body,  or  health;  crimes  affecting 
economic  conditions,  such  as  crimes  affecting  property; 
moral  relations,  such  as  attacks  upon  honor,  family; 
crimes  affecting  the  State,  such  as  threaten  its  exis- 
tence, its  economic  position,  or  its  ideal  purposes,  whether 
through  its  official  representatives  or  through  the 
citizens  whose  co-operation  the  State  requires,  such 
as  defiance  of  the  authorities,  refusal  to  serve  as  juror 
or  witness,  resistance  to,  or  neglect  of,  civic  duties,  etc. ; 
crimes  affecting  society  in  its  material  welfare,  such 
as  threaten  the  security  of  life  through  devastation  by 
fire  or  flood;  or  again  as  affecting  society  in  its  economic 
relations,  such  as  threaten  the  security  of  trade,  for 
example,  counterfeiting  and  forgery;  and  thirdly,  crimes 
as  affecting  society  in  its  ideal  relations,  as  threatening 
the  moral  and  religious  foundations;  for  example, 
perjury,  and  offenses  against  religion  or  morality. 

ThfcJicL-outcome  is  that  law  is  the  realization  of  the 
^'^onditions  required  by  the  body  social  in  a  liberal  sense 
of  that  termj^_ and  as  secured  by  governnuMU.il  lnicc: 
all  this  from  the  i)()int  of  \\vw  of  society.  Sorictx', 
however,  is  merely  tlie  sum  of  individuals,  and  the 
question  arises  whether  the  indi\iduars  well  arc  is  se- 
cured along  with  the  \\i'lfare  of  society.  The  ])rice 
which  the  iiidi\i(hiil  i)a>s  in  order  to  ])articipate  in  the 
privileges    of    tin-    l.iw    rei)resents    "the    legal    pressure 


§43]  SOCIAL    UTILITARIANISM  247 

upon  the  individual."  The  individual  has  legal  obliga- 
tions of  several  kinds  towards  the  community.  To  begin 
with,  he  furthers  all  social  ends  by  bearing  his  share  of 
the  taxes.  "The  taxes  tell  what  society  costs  in  bare 
cash."  In  addition  there  is  personal  service,  as  in  the 
army,  or  on  juries,  and  submission  to  police  and  penal 
regulations.  But  these  do  not  include  all  the  occasions 
on  which  society  interferes  with  the  legal  privileges  of 
the  individual.  Society  has  established  restrictions 
which  the  individual  must  accept  in  the  interest  of  the 
community.  These  include  the  duty  of  providing  for 
children,  and  the  limiting  of  the  exercise  of  the  right  to 
participate  in,  or  withdraw  from  educational  privileges. 
What  applies  to  the  family  applies  no  less  to  property. 
Did  not  private  interest  suffice  to  ensure  systematic 
cultivation  of  the  soil,  and  the  construction  of  buildings 
by  the  owners  of  land,  society  would  have  to  establish 
these  as  legal  duties.  The  many  legal  restrictions  of 
individual  rights  prove  the  falsity  of  "the  individualistic 
theory  of  property,"  which  regards  property  from  the 
point  of  view  of  the  individual,  and  the  correctness 
of  the  "social  theory  of  property,"  which  regards  it 
from  the  point  of  view  of  social  interests.  All  private 
rights  lia\'e  a  social  bearing;  though  their  immediate 
pur])os('  nia\'  be  the  safeguarding  of  individual  interests, 
the\'  ncxrrtheUss  are  influenced  by  social  considerations. 
Ilo\\c\\r,  the  inierleienc  t'  ol  society  with  the  individual 
as  an  organized  restraint  must  have  its  limits;  and 
this  makes  the  i^roblem  of  governmental  control  of 
indi\'idual  fiH'edoni.  Such  limits  must  ever  remain 
elastic.  As  the  purposes  of  society  grow  in  compre- 
hensiveness, the  conceptions  of  the  individual's  obliga- 
tions towards  society  will  ex]iand.  The  welfare  of  the 
individual  is  ne\er  a  pur])ose  in  itself,  but  ever  a  means4. 
for  securing  social  welfm'e;   therefore  when  an  individual 


348  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

is  forced  to  an  action  conducive  to  his  happiness,  it  is 
not  done  in  his  own  interests  but  in  the  interest  of 
society.  The  relation  between  the  authority  of  the  State 
and  the  freedom  of  the  individual  cannot  be  determined 
"by  an  abstract  theoretical  formula  but  by  practical 
considerations." 

The  claims  which  the  law  makes  upon  the  individual, 
have  as  their  correlative  the  services  of  the  State  in 
behalf  of  the  individual.  The  State  affords  protection 
against  encroachments  from  without  and  from  within 
—  the  protection  of  the  law  — ■  and  establishes  public 
institutions  in  the  interest  of  society.  The  balance 
between  the  social  claims  made,  and  the  social  services 
rendered,  is  merely  a  theoretical  matter;  in  reality  the 
interests  of  the  individual  and  society  are  one.  In  the 
law  the  individual  finds  a  means  of  defense  and  asser- 
tion. Nevertheless  legal  coercion  becomes  necessary 
for  two  reasons:  first,  because  of  inadequate  insight, 
for  not  everyone  recognizes  the  concurrence  of  his 
personal  interest  with  that  of  society,  ^ — "law  may  be 
defined  as  the  combination  of  the  wise  and  the  far- 
seeing  against  the  short-sighted");  second,  because  of 
the  inherent  divergence  of  private  and  public  interest. 
This  divergence  is  at  once  the  source  of  the  strength 
of  the  law  and  of  its  weakness:  of  its  weakness,  because 
of  the  more  intimate  hold  of  pri\'ate  interest  upon  the 
individual ;  of  its  strength,  because  the  common  interest 
combines  all  against  each  i)artisan  of  special  interests. 
While  tluis  insisting  \\\)(m  the  social  indispensability  of 
coercion,  Ihering  observes  that  society  cannot  ade- 
quately coerce.  Crimes  occur  des])ite  it.  The  social 
measures  of  reward  and  coercion  are  not  adequate  and 
rc(|nii(;  the  c()ni])l('nicnlar\'  ])r('ssnre  of  moralit}.' 

'  I,  pp.  4sr)  IST;  -I'.«»  sc(|.;  4<t2;  4<)4  seq.;  litf)  r)()4;  51  1  seq.;  f^  12-515; 
51()  .^);{<).  .Vir»  seq.,  .5:52,  ry.iA  seq.;  536  seq.;  545  seq;  5.50  seq.;  551- 
5.V.I;    .")•■)()   .'.(IS;  .'.70. 


§43]  SOCIAL    UTILITARIANISM  349 

The  second  portion  of  the  work  is  devoted  to  morality. 
In  order  to  attain  an  insight  into  the  nature  of  ethics, 
Ihering  draws  upon  the  evidence  of  language,  in  which, 
however,  he  relies  too  much  upon  contemporary  usage 
to  the  neglect  of  the  early  stages  and  growth  of  language. 
His  etymological  argument  leads  him  from  morality, 
"Sittlichkeit,"  to  custom,  "Sitte,"  which  in  turn  leads 
to  a  study  of  custom.  His  thesis  is  that  morality  finds 
its  source  in  social  utilitarianism.^  Morality  and  law 
have  but  a  rrlati\'e  validity,  depending  at  every  stage 
upon  the  existent  needs  of  society. 

Inhisp()i)ular  work,  "Der  Kampf  um's  Recht,"  Ihering 
contends  that  the  aim  of  law  is  peace,  and  the  way  to 
secure  peace  is  through  war.  Law  is  ever  the  result  of 
struggle.  The  issue  in  legal  contentions  is  not  the 
particular  case  but  the  "ideal  purpose  or  principle  at 
issue,  the  assertion  of  the  individual  or  of  his  sense  of 
justice."  Hence  to  fight  for  one's  rights  is  a  duty. 
"Every  man  is  a  champion  of  the  law  in  the  interests 
of  society."- 

Ihering  carries  his  readers  by  the  convincing  quality 
of  his  style.  It  is  his  mode  of  viewing  and  of  dealing 
with  the  philosophical  aspects  of  legal  problems,  together 
with  his  emphasis  of  purpose  as  a  pervading  principle, 
that  accounts  for  his  wide  influence  upon  writers,  upon 
the  sociological  penologists  most  of  all.^  Yet  his_^ 
theory  is  psychologically  faulty.  It  is  not  the  case  that'''^^^ 
all  human  conduct  comes  under  the  law  of  purpose.  rn- 

It  is  true  that  all  action  involves  the  contemplation  of 
a  purpose ;  yet  a  considerable  share  of  human  act'ons  are 
not  actually  done  with  a  view  to  a  purpose;  the  con- 
sciousness of  the  end,  and  the  striving  for  it,  are  not  the 

>  II,  pp.  20-57,  241  seq.;  177-241. 

2  "Der  Kampf  um's  Recht,"  pp.  1;  18;  20;  52 

2  See  below,  §  44. 


35Ü  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

decisive  and  determining  psychological  factors  of  the 
action;  but  the  action  arises  from  an  emotional  condi- 
tion, and  this  emotional  factor  is  decisive  —  all  of  which 
is  particularly  true  of  moral  actions.^  Nor  is  Ihering's 
view  justified  by  history.  A  consideration  of  the  histori- 
cal evolution  of  law  shows  that  actions,  carried  out  with- 
out conscious  reference  to  a  purpose,  play  an  important 
part  therein;  and  that  frequently  the  intention  and  the 
accomplishment  diverge. 

The  fundamental  fallacy  of  Ihering's  legal  philosophy, 
which  is  fundamental  enough  to  undermine  his  ambitious 
construction,  is  inherent  in  his  basal  assumption. 
Considerations  of  purpose  and  use  cannot  serve  to  define 
the  nature  of  law,  government,  or  morality;  and  this, 
first,  because  these  concepts  represent  nothing  objective. 
What  must  be  determined  is  the  objective  nature  of  law 
and  government,  how  their  objective  forms  may  be 
justified.  But  the  concepts,  purpose,  and  use,  have 
meaning  only  with  reference  to  a  human  subject.  If 
we  take  away  from  purpose  the  purpose-conceiving 
individual,  or  from  use  its  beneficiary,  nothing  remains. 
In  the  second  place,  even  though  thus  regarded  as  sub- 
jective factors,  purpose  and  use  do  not  afford  an  insight 
into  law  and  economics;  by  their  nature  they  look  to 
the  direct  result,  the  immediate  effect.  If  a  law  —  and 
the  same  is  true  of  the  action  of  an  individual« —  seeks  a 
purpose  or  use,  it  considers  and  influences  only  the 
immediate  or  slightly  remote  consequences;  and  if  it 
succeeds,  it  has  a  temporary,  ne\er  a  duiable  effect. 
I'urlhcrmore  ]iuri)Ose  and  use  have  not  the  same  field 
(if  ()])C'ralion  as  law  and  government.  Acting  for  an 
end  makes  for  constant  cndea\<)r  and  C()mi)lete  satis- 
f;i(  lion.  If  it  were  tlie  nature  of  law  and  government 
and   ethics   to   rcali/c   purposes,    they   would   either   fail 

^Bcrulzheimrr,  "K((  litsijlulosopliisclic  Sludii-n,"  pp.  1  IG   148. 


§44]  SOCIOLOGICAL  SCHOOL  351 

of  their  ends,  that  is,  not  conform  to  their  purpose 
(in  which  case  Ihering's  theory  would  be  deprived  of  its 
basis),  or  they  w'ould  actually  attain  their  purposes, 
in  which  case  the  regulation  of  life  by  law  would  involve, 
that  under  the  dominion  of  law,  and  with  the  acceptance 
of  ethics,  wrong  and  crime  could  not  exist.  Govern- 
ment and  ethics  would  preclude  rebellion  against  govern- 
mental authority  or  commission  of  crime,  etc.  La\v, 
politics,  and  government,  viewed  with  reference  to 
ends,  are  ever  imperfect;  there  are  always  unassimilated 
remnants.  But  any  interpretation  of  law  and  govern- 
ment that  pretends  to  be  a  real  solution  must  be  all 
comprehensive.  My  own  position  urges  that  this  condi- 
tion is  fulfilled  in  the  theory  of  forces,  the  view  that 
government,  law,  and  morality  are  cultural  forces. 
Along  with  force  there  must  be  weakness,  just  as  light 
involves  shade.  Purpose  is  economical;  force  in  its 
abundance  is  extravagant  and  implies  a  surplus. 

Welfare,  use,  happiness,  do  not  give  the  cardinal 
directions  to  human  ends  and  endeavors.  Happiness 
rarely  finds  its  home  among  the  upper  levels  of  human 
attainment;  it  abides  at  the  lower  levels.  The  poet 
may  proclaim  an  idyllic  peace,  but  the  evolution  of 
human  culture  is  dramatic,  full  of  stress  and  strain. 

§  44.  The  Sociological  School.  1 :  Its  Distinctive 
Position.  The  sociological  school  that  developed  upon 
the  basis  of  the  doctrines  of  Comte  and  Spencer  makes 
man  primarily  and  distinctively  a  social  being,  a  mem- 
ber of  a  composite  community.  Its  position  stands  in 
direct  contrast  to  the  individualistic  trend,  which  attained 
its  marked  development  in  the  seventeenth  and  eight- 
teenth  centuries.  For  Hobbes,  Rousseau,  and  other 
adherents  of  "natural  law,"  the  fundamental  problem 
was  this:  What  disposes  men  collectively  to  form  a 
State,    and   subject   themselves   to   governmental    coer- 


352  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

cion?  The  sociologists  frame,  or  rather  answer  the  ques- 
tion from  a  different  standpoint.  They  reply:  the  State 
is  not  formed  by  the  combination  of  individuals,  but 
at  the  outset  men  are  naturally  united  in  larger  or  smaller 
groups.  Like  many  types  among  the  higher  animals, 
primitive  men  formed  a  gregarious  band.  It  is  the  merit 
of  sociology  to  have  established  this  generally  accepted 
view  of  prehistoric  life  and  to  have  appreciated  its 
significance. 

A  further  distinction  of  sociology  —  though  this  is 
limited  to  Gumplowicz  and  his  followers  —  relates  to 
the  manner  in  which  the  State  presumably  arose.  It 
is  held  that  the  means  by  which  the  larger  collective 
associations  in  primitive  culture  were  maintained,  up 
to  the  point  of  their  consolidation  into  a  State,  were 
those  of  conflict  —  a  struggle  and  rivalry  for  power. 
Such  an  antagonism  between  two  groups,  as  hordes, 
tribes,  or  the  social  aggregates  leading  to  the  relation  of 
master  and  servant,  forms  the  underlying  situation  lead- 
ing to  government.  Such  antagonism  may  be  more  or 
less  pronounced;  the  exploitation  of  the  enslaved  by  the 
dominant  class  may  be  regulated  by  law,  or  it  may  be 
the  result  of  social  and  economic  circumstances;  at  all 
events  there  remains  a  more  or  less  sharply  defined  dual- 
ism, sejiarating  the  State  into  strata,  and  this  fact  is 
emphasized  by  the  sociologic  theory  of  the  formation 
of  the  State.  The  individual  is  represented  as  with- 
drawing in  favor  of  the  class  and  as  completely  absorbed 
by  it,  intellectually,  socially,  and  politically. 

2:  Its  Precursors.  Gumyilowicz  regards  Ferguson 
(1723-1816)  as  the  forerunner  of  the  sociological  school. 
In  17()7  Ferguson  ])ul)lished  "An  Essay  on  the  History 
of  Civil  Society,"  ^  wliirh  has  received  greater  attention 

'"All  l'"ss;iy  on  llic  History  of  Civil  Society."  I  cite  from  the 
t  liiiil  cilil  ion,  I  .ondon   1  7t')S. 


§44]  SOCIOLOGICAL  SCHOOL  353 

in  recent  times  than  it  obtained  upon  its  appearance. 
Ferguson's  claim  to  a  position  in  the  sociological  school 
is  based  upon  his  conclusion  that  men  have  always  been 
associated  in  groups;  that  even  before  a  State  was  es- 
tablished they  did  not  live  in  isolation  but  were  social- 
ized.^ As  evidence  he  adduces  the  accounts  of  travelers 
in  American  and  other  contemporary  accounts  of  con- 
ditions among  primitive  peoples.^  He  further  points 
out  that  by  virtue  of  a  fundamental  trait, ^  struggle  leads 
to  progress ;  for  clanger  makes^mencombine,  and  struggle 
promotes  the  interests  of  culture.*     He  also  refers  to 

^  See  Ferguson,  "History  of  Civil  Society,"  Part  I.  "Of  the 
general  Characteristics  of  Human  Nature,"  §  1.  "Of  the  question 
relating  to  the  State  of  Nature,"  pp.  1-16.  p.  6:  "Mankind  are  to 
be  taken  in  groups,  as  they  have  always  subsisted."  §  3.  "Of 
the  principles  of  Union  among  Mankind,"  pp.  26-31.  p.  26:  "Man- 
kind have  always  wandered  or  settled,  agreed  or  quarreled,  in  troops 
and  companies.  The  cause  of  their  assembling,  whatever  it  be, 
is  the  principle  of  their  alliance  or  union."  p.  27:  "Man  is  born  in 
society,"  says  Montesquieu,  "and  there  he  remains.  The  charms 
that  detain  him  are  known  to  be  manifold." 

2  "History  of  Civil  Society,"  Part  H.  "Of  the  History  of  Rude 
Nations."  §  2:  "Of  Rude  Nations  prior  to  the  Establishment  of 
Property,"  pp.  133-157.  See  also  §3:  "Of  Rude  Nations  under 
the  Impressions  of  Property  and  Interest,"  pp.  158-177. 

3  "Hist,  of  Civil  Society,"  Part  I,  §  4.  "Of  the  Principles  of  War 
and  Dissension."  p.  33:  "Mankind  .  .  .  appear  to  have  in  their 
minds  the  seeds  of  animosity,  and  to  embrace  the  occasions  of 
mutual  opposition,  with  alacrity  and  pleasure." 

^  "Hist,  of  Civil  Society,"  Part  I,  §  4,  pp.  32-41.  p.  39:  "Without 
the  rivalship  of  nations,  and  the  practice  of  war,  civil  society 
could  scarcely  have  found  an  object,  or  a  form.  Mankind  might 
have  traded  without  any  formal  convention,  but  they  cannot  be 
safe  without  a  national  concert.  The  necessity  of  a^public  defense 
has  given  rise  to  many  departments  of  state,  and  the  intellectual 
talents  of  men  have  found  their  busiest  scene  in  wielding  their 
national  forces." 


354  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

the  trait  later  emphasized  by  Gumiilowicz/  namely,  the 
complete  moral  subjection  of  the  individual  to  his  group. 

Although  Schleiermacher's-  (1768-1834)  philoso- 
phy and  ethics  differ  from  that  of  the  sociological 
school,  he  must  be  mentioned  in  this  connection  by 
reason  of  his  psychological  treatment^  and  his  accept- 
ance of  the  primitive  horde"*  as  the  element  which  led 
to  the  establishment  of  the  State.  He  held  that  this 
occurred  whenever  the  antagonism  between  ruler  and 
subjects  became  manifest.^  The  State  arose  whenever 
custom  passed  into  law  and  made  justice  possible.^ 

Albert  E.  F.  v.  SchXffle''  (1831-1903)  is  the  author 
of  a  comprehensive  system  ^  of  general  sociology  which 

^Gumplowicz,  "Die  Soziologische  Staatsidee,"  Graz  1892,  p.  68' 
I  have  not  been  able  to  deduce  this  principle  from  P'erguson's  work, 
at  least  not  explicitly. 

^  "Die  Lehre  vom  Staat,"  "Col.  Works,"  Part  III.  "Zur  Philoso- 
phie," 8  vols.  Literary  remains.  "Zur  Philosophie,"  6  vols., 
Berlin  1845,  published  by  Chr.  A.  Brandis.  The  book  is  complete, 
but  the  manuscript  is  not  perfected  for  publication;  it  is  in  the 
form  of  detailed  sketches  and  notes  for  lectures  on  the  subject. 

^  "Die  Lehre  vom  Staat,"  p.  2:  "These  lectures  are  regarded  as 
wholly  physiological;  their  purport  is  to  consider  the  nature  of  the 
State  as  living  and  the  several  functions  in  their  mutual  relations." 

-  "Die  Lehre  vom  Staat,"  p.  3,  note  **:  "The  race  is  earlier  than 
the  State."     See  also  pp.  2-4,  7-10. 

*  "Die  Lehre  vom  Staat,"  p.  3:  "The  contrast  of  ruler  and  sub- 
ject.    Wherever  that  obtains  there  is  government,  and  vice  versa." 

"  "Die  Lehre  vom  Staat,"  pp.  8  seq.:  "Let  us  place  side  by  side 
the  last  stage  where  there  is  as  yet  no  State,  and  the  first  stage  at 
which  the  State  comes  into  being,  and  ask  what  is  the  change. 
The  transformation  is  merely  the  explicit  expression  of  custom  as 
law,  and  thus  a  transition  from  an  unconscious  to  a  conscious  state 
of  community."  See  also  the  fourth  lecture,  pp.  6  seq.,  the  subject 
of  which  is  that  "the  State  exists  only  to  guarantee  law." 

'  Austrian  "Minister  of  Commerce"  in  1871. 

*  For  his  writings  see  "Handwörterbuch  der  Staatswissenschaften," 
second  erlilicjii,  (5  vols.,  \)\->.  .')()7  se(|.,  and  Schäffle's  work  itself,  "Aus 
meinem  Leben,"  Berlin  l<)()r),  Vol.  II,  pp.  244  247. 


§4^/  SOCIOLOGICAL  SCHOOL  355 

he  describes  as  "a  philosophy  of  the  several  social  sci- 
ences in  so  far  as  such  a  system  may  at  present  be  at- 
tempted." In  addition  hiswork  contains  a  special  system 
of  sociology.^ 

Schäffle  portrays  the  body  social  as  a  more  complex, 
more  highly  developed  and  differentiated  organism,  the 
nature  and  variety  and  activities  of  which  are  to  be 
traced  by  analogy  with  the  natural  characteristics  of 
animal  and  plant  life.  He  calls  it  a  hyperorganism  in 
view  of  the  complexity  of  its  organization  through  gov- 
ernment and  law,  which  transcend  the  natural  and  spon- 
taneous group-formations.-  The  social  affiliations  are 
by  structure  and  functions  superorganic.  In  carrying 
out  in  detail  this  analogy,  he  sets  forth  "likenesses  and 
differences  between  organic  and  social  bodies."^  Thus 
the  family  becomes  "a  fundamental  physiological  trait 
of  thesocial  body,"  *  supported  by  "primary  association." 
The  several  gregarious  and  communal  associations  in- 
stituted by  society  are  treated  as  "social  tissues,"  or 
social  histology,   and  so  on. 

Schäfifle's  ambitious  project  was  not  worth  the  effort. 
His  painstaking  analogies  are  after  all  merely  analogies, 
comparisons,  and  figures  of  speech.     To  call  society  a 

^  See  Schäffle,  "Neue  Beiträge  zur  Grundlegung  der  Soziologie,"  Z. 
f.  d.  g.  Staatsw.,  Vol.  LX,  1904,  pp.  103  204.  Also  Vol.  LIX,  1903, 
pp.  294  seq.,  479  seq.  (in  Schäffle's  essay:  "Die  Notwendigkeit 
exackt  entwickelungsgeschicht lieber  Erklärung  und  exakt  ent wickel- 
ungsgeschichtlicher Behandlung  unserer  Landwirtschaftsbedräng- 
nis," pp.  255-340,  476-552). 

-  "Bau  und  Leben  des  sozialen  Körpers,"  Vol.  I,  p.  1. 

3  "Bau  und  Leben,"  I,  pp.  8-18,  18-23;  2G-85;  86-124,  124-137. 

^  "Avenarius  Vierteljahrschrift  für  wissenschaftliche  Philoso- 
phie," Vol.  II,  1878,  pp.  38-67;  p.  53:  "Law  without  authority 
cannot  exist.  Law  which  has  not  the  power  to  maintain  itself 
cannot  be  permanently  esteemed  and  therefore  cannot  endure. 
Law  and  custom  must  be  looked  upon  as  forces,  as  living  powers." 


356  SOCIOLOGICAL  PHILOSOPHIES    [Cm.  VII 

"hyperorganism"  adds  nothing  to  our  knowledge  of 
society,  nor  does  it  in  any  way  increase  our  sociological 
insight.  The  same  criticism  applies  to  Schäffle's  essay 
on  "Law  and  Custom,  Considered  as  a  Sociological 
Expansion  of  Artificial  Selection,"  though  the  essay  is 
valuable  for  its  recognition  of  law  and  custom  as  social 
forces. 

3:  ^uMPLOWicz.  Among  the  foremost  leaders  of 
the  sociological  school  is  Gumplowicz^  (1838—1910). 
He  commands  a  large  range  of  illustrative  material  with 
which  he  enriches  the  principles  of  sociology,  and  sets 
forth  their  bearing  with  exceptional  clearness  and  effec- 
tiveness. His  style  is  at  once  vigorous  and  engaging, 
and  appeals  to  the  literary  sense.  This  talent,  and  the 
individuality  of  his  position  —  somewhat  withdrawing 
him  from  the  dominant  sympathies  of  German  investi- 
gators —  may  account  for  his  immoderate  indulgence 
in  controversy. 

According  to  Gumplowicz  the  State  "is  a  social  phe- 
nomenon due  to  the  natural  action  of  social  factors,  and 
whose  development  is  dependent  upon  their  further 
operations."-     The  essential  characteristics  of  the  State 

^  The  works  of  Cnimplowicz  here  pertinent  lire:  "Rasse  und 
Staat,  Kine  Untersuchung  über  das  Gesetz  der  Staatenbildung," 
Vienna  1875.  This  smaller  volume  contains  the  nucleus  of  the  legal 
economic  views  of  Gumplowicz.  See  especially  pp.  6-8,  13-15, 
26,  30,  50.  "Der  Rassenkampf,  Soziologische  Untersuchungen," 
Innsbruck  1882  (translated  into  French  by  Charles  Baye,  Paris 
1893,  "La  Lutte  des  Races,"  and  into  Spanish,  "La  Luchade  Razas," 
Madrid  1894),  "Grundriss  der  Soziologie,"  Vienna  1885.  "Philoso- 
j)hisches  Staatsrecht"  (in  the  second  edition  the  title  was  changed 
to  "Allgemeines  Staatsrecht,"  Innsbruck  1897).  "Die  soziologische 
Staatsidee,"  Festschrift  der  k.  k.  Karl-Franzens-Universität  zur 
Jahresfeier  am  November  15,  1892.  Graz  1892.  "Soziologie  und 
Politik,"  Leijjzig  1892.  "Geschichte  der  Staatstheoricn,"  Inns- 
bruck 1905  (pp.  434-436,  446-491,  559  seq.). 

^  "Grundriss  der  Soziologie,"  p.  113. 


§44]  SOCIOLOGICAL  SCHOOL  357 

are  the  same  as  those  enumerated  by  Schleiermacher: 
"Rulers  or  a  ruling  class  and  subjects;  the  governing 
authorities  and  the  governed  classes:  these  are  the  eter- 
nal, unchangeable,  fixed  factors  of  the  State.  There 
never  was,  nor  does  there  now  exist,  a  State  without  this 
antagonism."^  ^  The  nature  of  the  State  is  expressed 
as  "a.  division  of  labor  made  and  maintained  by  coercion 
among  a  number  of  social  elements  organically  united 
into  a  whole.  The  development  of  this  composite  unit 
proceeds  by  a  struggle  among  its  constituents  for 
the  purpose  of  determining  their  relative  powers  — -  the 
issue  in  each  case  being  expressed  in  law  and  statutes." ^ 

The  constructive  factor  of  the  State  and  of  its  evolu- 
tion is  not  the  individual  nor  the  family,  but  the  social 
group  involving  the  dualism  of  the  ruler  and  the  ruled. 
"The  elements  of  the  State  are  not  human  atoms,  nor 
family  cells,  but  human  groups  or  races;  in  them  the 
State  originates,  and  through  them  it  continues.  Those 
who  emerge  from  the  struggle  as  victors,  form  the  ruling 
classes;  the  conquered  and  subjugated  form  the  labor- 
ing and  serving  classes."'* 

Gumplowicz  does  not  favor  the  socialistic  principle 
which  becomes  operative  as  class  conflict,  but  gives  a 
sociological  interpretation  to  the  struggle  of  races  which 
anthropology  reveals.  In  so  doing  he  was  influenced 
by  the  anthropological  investigations  of  Count  Gobin- 
eau,^  and  may  have  drawn  a  suggestion  from  the  racial 

^"Allgemeines  Staatsrecht,"  pp.  33  seq.;  see  also  "Rasse  und 
Staat,"  pp.  6-8,  13-15,  26,  30,  50. 

^Gumplowicz,  "Grundriss  der  Soziologie,"  pp.  115  seq.  and  127. 

^  "Die  soziologische  Staatsidee,"  p.  55. 

^"Allgemeines  Staatsrecht,"  p.  116.  See  particularly  pp.  110- 
136;   "Grundriss  der  Soziologie,"  pp.  115  seq.,  127-135. 

^Gobineau,  "Essai  sur  I'lnegalite  des  Races  Humaines,"  4  vols., 
first  edition,  Paris  1853-1855. 


358  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

factions  in  Austria.  He  thus  makes  sociology  the  study 
of  the  "interactions  of  social  groups,  which  obey  natural 
laws  as  unalterable  as  those  controlling  the  movements 
of  the  sun  and  planets.  .  .  .  Sociology  is  not  concerned 
with  judgments  of  value."  ^  For  "individual  actions 
are  based  not  upon  physiological  but  upon  social  motives. 
The  influence  of  environment  always  and  in  all  situa- 
tions determines  the  action  of  the  individual." ^ 

4:  Ratzenhofer.  Gustav  Ratzenhofer's  (d.  1904) 
work,  "Die  Soziologische  Erkenntnis,"^  is  based  upon 
that  of  Gumplowicz.  He  holds  that  when*  "two  com- 
munities become  one,  the  victorious  tribe  annihilates 
the  conquered,  not  objectively,  but  politically,  so  far 
as  concerns  its  existence  as  an  independent  social  factor. 
.  .  .  Despite  this  subjection,  the  conquered  tribe  con- 
tinues its  social  life;  in  the  reorganized  community  it 
constitutes  a  lower  stratum  of  society,  and  social  inequal- 
ity becomes  established.  The  subjugated  group  be- 
comes a  slave,  or  at  least,  a  laboring  class;  and  the 
conquerors  assume  a  privileged  position.  This  relation 
between  the  dominant  and  the  subject  class  is  the  exter- 
nal expression  of  the  communal  bond.  .  .  .Through  the 

In  "Der  Rasscnkevmpf,"  p.  38,  note  1,  Gumplowicz  mentions  that 
he  was  influenced  by  Gobineau's  essay,  and  makes  a  long  citation 
therefrom,  with  the  conclusion,  "Let  us  compare  not  men  but 
groups." 

^Gumplowicz,  "Soziologie  und  Politik,"  })p.  fvi,  53-57,  67-100, 
g9^  89-95.  See  also  CtimpUnvicz,  "Die  soziologische  Staatsidee," 
pp.  40,  56. 

2  It  is  not  possible  williiii  tlie  compass  of  this  work  to  refer  to  the 
extremcK-  \nluniiii<)iis  liiciai  iiro  of  sociology.  It  will  be  sufficient 
tomeiilion  llic  \W)W  iniixotant  works. 

^"I'()sili\c  I'iiilosopiiie  des  sozialen  Lebens,"  Leipzig  1898. 

■•  "Die  soziologische  I'.rkenntnis,"  ])p.  156-164. 


§44]  SOCIOLOGICAL  SCHOOL  359 

inequality  thus  resulting,  law  replaces  custom  as  a  regu-  . 
lative  force."  ^ 

Ratzenhofer's  "Positive  Ethik,  die  Verwirklichung 
des  Sittlich-Seinsollenden,"  a  philosophy  of  "monistic 
positivism,"-  ^  regards  ethics  sociologically,  and  trans- 
fers the  princii)les  of  sociology  to  ethics.  "A  significant, 
though  formal  requisite  of  ethical  interpretation"  is 
the  proposition  "that  moral  obligation  is  derived  from 
the  evolution  of  primitive  might,  that  immorality  is 
a  disturbance  of  such  evolution,  and  that  the  ethical 
will  reflects  the  inherent  spirit  of  such  evolution." 
This  is  the  Stoic  "living  according  to  nature,"  restated 
in  terms  of  modern  evolution. 

The  ethical  sense  originates  in  the  tribal  feeling  which 
transfers  "the  individual's  effort  to  develop  his  individ- 
uality to  a  community  of  kin."  The  essence  of  the  ethical 
sense  is  "renunciation  exercised  by  the  individual  in 
favor  of  the  species."  Evil  is  what  is  useful  to  the  indi- 
vidual and  harmful  to  the  community,  and  good  is  what 
is  beneficial  to  all.  The  ethical  principle  demands  the 
"development  from  what  is  useful  to  the  individual  to  ) 
what  is  useful  to  the  community."  i^ 

According  to  positive  ethics  based  upon  human  nature, 
the  source  of  morality  is  not  the  will  but  the  develop- 
ment of  inherent  natural  interest.  Self-interest  presents 
the  following  varieties:  physiological  interests  directed 
towards  the  end  of  normal  physical  development;  racial 
interests  arising  from  the  family  relation,  and  directed 

^  "Die  soziologische  Erkenntnis,"  pp.  157  seq. 

^  His  other  works  are:  "Wesen  und  Zweck  der  PoHtik."  Part  of 
the  "Soziologie  und  Grundlage  der  Staatswissenschaften,"  3  vols., 
Leipzig  1893.  (Preliminary  to  "Soziologische  Erkenntnis.")  "Der 
Positive  Monismus  und  das  einheitliche  Prinzip  aller  Erschein- 
ungen," Leipzig  1899.     (Preliminary  to  "Positive  Ethik.") 

3  "Positive  Ethik,"  Leipzig  1901. 


\) 


360  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

towards  the  maintenance  and  perpetuation  of  the  species; 
individual  interests  or  self-interest,  by  the  extension 
of  the  physiological;  social  interests,  by  the  extension 
of  the  racial  interests,  including  all  manner  of  communal 
interests  reflected  in  social  institutions;  transcendental 
interests,  which  arise  through  the  idealistic  expansion 
of  individual  and  social  interests,  and  through  which 
the  individual  "feels  himself  consciously  at  one  with 
the  enduring  primal  motive  force." 

Each  of  these  five  spheres  of  interest  is  further  devel- 
oped in  its  ethical  aspects.  Sociology  teaches  that  indi- 
vidual and  social  prosperity  depends  upon  adaptation  to 
natural  processes,  among  which  Ratzenhofer  includes 
the  facts  of  sociological  evolution.  These  must  direct 
the  expressions  of  the  will.  The  desirable  and  the  moral 
are  thus  prefigured  in  the  nature  of  the  primal  force. 
"Virtues,  whether  individual  or  social,  express  limita- 
tions within  the  sjihere  of  the  will  exercised  under  nat- 
ural laws."  Christian  ethics  disregards  the  ethical  sense 
of  the  individual  as  directed  towards  himself;  utilitar- 
ianism disregards  it  as  directed  towards  others,  and 
ignores  the  social  requirements.  Neither  tendency  can 
harmonize  the  several  interests.  "The  harmony  of  in- 
terests is  based  U]ion  the  interests  of  the  individual 
directed  towards  his  bodily,  intellectual,  and  moral  im- 
provement, and  ui«)n  racial  interests  directed  towards 
the  common  ]^urposes  of  social  institutions.  Of  these 
the  individual  is  a  part,  and  in  their  behalf  he  is  ready 
to  bring  larger  sacrifices  according  as  they  make  a  closer 
racial  and  cultural  appeal;  these,  in  turn,  he  forms  into 
a  transcendental  interest,  thereby  feeling  his  partici- 
pation in  the  laws  of  the  jirimal  force."  Ratzenhofer 
finds  the  most  durable  guaranty  of  a  harmony  of  interests 
in  the  moral  and  iiiullectual  concordance  of  the  motives 
inspiring  ideals.     The  monistic  position,  based  upon  a 


§44]  SOCIOLOGICAL  SCHOOL  361 

positive  knowledge  of  nature  in  its  ethical  bearing, 
furthers  a  harmony  of  interests  and  collective  purposes. 
Every  expression  of  the  will  is  guided  by  a  moral 
norm,  which  in  the  concrete  is  prescribed  by  natural 
laws  favoring  the  interests  of  the  race.  "What  is  con- 
formable to  natural  law  represents  the  absolutely  desir- 
able, and  what  is  collectively  beneficial  to  mankind 
represents  the  morally  desirable,  which  coincides  with 
human  purposes  as  ordained  by  nature."  In  addition 
to  the  morally  desirable  there  is  the  relatively  desirable, 
that  is,  "the  moral  norm  which  is  acknowledged  as  col- 
lectively beneficial  at  a  given  stage  of  intellectual  devel- 
opment and  as  established  by  custom  and  reason."  The 
relatively  desirable  represents  the  current  stage  of 
morality  "since  it  is  not  possible,  and  indeed  harmful, 
and  therefore  immoral,  to  attempt  to  short-circuit  stages 
of  development.  Every  period  and  every  people  has  its 
morality;  and  radically  to  depart  therefrom  may  pro- 
duce moral  results  as  undesirable  as  would  departure 
from  the  laws  of  nature."  Conscience  represents  the 
ethical  force  of  man.  The  appeal  of  the  relatively 
desirable  to  human  endowment  awakens  "moral  sugges- 
tions; and  these,  in  so  far  as  they  contain  the  rudiments 
of  an  ethical  principle,  lead  to  the  moral  sense  or  con- 
science. Conscience  is  a  product  of  the  development 
of  innate  interest,  and  asserts  itself  as  soon  as  racial 
interests  show  signs  of  social  interest."  Conscience 
gives  rise  to  the  sense  of  responsibility  as  exercised 
towards  one's  own  affairs,  or  towards  others;  and  from 
it  arises  the  appearance  of  free  action.  Conscience  is 
to  be  developed  by  the  education  of  the  young,  and 
the  enlightenment  of  the  mature.  Conscience  is  the  ethi- 
cal regulator  in  all  relations  of  life;  in  personal  service, 
in  the  relation  of  the  sexes,  in  business,  in  politics,  in 
science,  and  in   art.       It    is   developed    in    school   and 


362  SOCIOLOGICAL  PHILOSOPHIES    [(  h.  VII 

through  the  moraUzing  influence  of  labor.  The  expres- 
sions of  conscience  are  the  virtues. 

Side  by  side  with  the  moral  quaUties  of  the  individual 
are  those  due  to  social  organization.  Sociology  teaches 
that  men  adapt  the  expression  of  their  desires  to  a 
general  purpose.  "The  social  organization  thus  acquires 
an  active  will  which  is  more  than  the  aggregate  of 
individual  wills,  and  is  indeed  the  resultant  of  the  forces 
of  the  constituent  wills."  "This  distinction  between 
the  social  will  and  the  will  of  the  individual  has  induced 
many  writers  to  speak  of  a  'folk-soul,'  and  to  accept  a 
racial  ]:)sychology,  —  such  acceptance  in  some  cases 
being  inspired  by  hostility  to  sociology,  and  by  a  desire 
to  replace  sociology,  which  is  slowly  attaining  a  proper 
scientific  insight,  by  something  novel  and  barely 
intelligible."  This  criticism  of  Ratzenhofer's  is  not 
merely  unjust  but  is  based  upon  a  serious  error.  The 
distinction  between  the  will  of  society  and  the  aggregate 
of  individual  wills  is  neither  new  nor  a  contribution  of 
sociology.  Rousseau  spoke  of  a  "volonte  generale," 
and  a  "volonte  de  tons";  and  racial  ]isychology  is  older 
than  ( lumi^lowicz.  Indeed  the  first  volume  of  the  "Zeit- 
schrift für  Völkcr])sychologie  und  Sprachwissenschaft" 
appeared  in  1859-60. 

The  origin  of  the  social  will  according  to  Ratzenhofer 
lies  not  in  the  spontaneous  conscious  processes  of  the 
individual,  but  in  external  influences,  —  alike  in  the  pre- 
vailing 7)ur])oses  and  expressions  of  one's  fellow  men, 
and  in  prevalent  conditions.  Social  virtues  are  such  as 
family  feeling,  racial  and  national  consciousness,  the 
latter  growing  into  i)atriotism.  Social  consciousness 
rei)resents  the  consummation  of  a  complete  morality. 
However  strong  his  coinniunal  sense,  every  man,  in 
following  the  i)recepts  of  ]>  ;sitive  ethics,  nuist  retain 
his  legitimate  ])ersonal  interests,  and  protect  them  wiiile 


§44]  SOCIOLOGICAL  SCHOOL  363 

yet  bringing  them  into  accord  with  tlie  communal 
interests. 

Viewed  historically,  the  sociological  characteristic  of 
ethical  develo]iment  is  thus  ex]iressed:  "Through  the 
struggle  to  gain  favorable  conditions  of  life,  mankind 
rises  from  a  mere  instinctive  expression  of  the  social 
nature  to  an  individualization  of  interest  as  yet  without 
a  conscience,  but  making  morality  necessary;  in  turn 
conscience  is  awakened  and  directs  self-interest  into 
social  channels,  and  — ■  the  conditions  of  life  having  been 
satisfied  —  makes  possible  the  reign  of  morality  by 
subjecting  vices  to  an  ideal  moral  control."  To  make 
a  nation  successful  in  a  struggle  for  existence  there  is 
no  better  way  than  to  accept  the  aims  and  purposes 
which  positive  ethics  recognizes  as  morally  desirable.^ 

Ratzenhofer's  sociological  ethics  aims  to  show  that 
social  utilitarianism  is  in  accord  with  nature  and  natural 
law.  As  to  the  practical  value  of  his  sociological  posi- 
tion as  endorsed  by  Gumplowicz,  a  few  objections  may 
be  noted.  Positive  ethics,  as  every  form  of  utilitarian- 
ism, fails  to  find  a  j^roj^er  support  in  the  facts;  it  is 
likewise  inconsistent  with  sociological  principles.  For 
such  principles,  holding  that  social  evolution  proceeds 
according  to  natural  laws,  would  lead  to  fatalism, 
resignation,  the  acknowledgment  of  human  Imj^otence 
in  the  presence  of  the  mighty  forces  of  nature;  in  which 
case  it  is  futile  to  enlarge  upon  what  may  be  ethically 
desirable.  Spinoza  was  unaljle  to  construct  an  ethics 
upon  the  Stoic  position,  and  found  a  way  out  by  recourse 
to  individual  utilitarianism.  Similarly  Ratzenhof  er,  in 
an  attempt  to  construct  an  ethical  system,  draws  upon  a 
social  utilitarianism,  and  reaches  a  compromise  which 

1  "Positive  Ethik,"  pp.  34,  60  seq.;  36;  51;  66;  67;  68-113;  113- 
115;  116-121;  121-128;  128-131;  138-211,  231-291;  212-223,  223- 
230;  292  seq.;  304-318,  304,  309,  317;  327,  333. 


364  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

is  hardly  a  philosophic  solution;  thus  again  showing 
the  failure  of  sociology  to  hold  consistently  to  its  funda- 
mental   principle    of    accordance    with    natural    law.^ 

^  Of  the  most  recent  contributions  to  sociology  the  following  may 
be  referred  to:  The  writings  of  Alb.  Herrn.  Post,  for  which  see 
§47;  those  of  G.  Tarde,  §  49;  of  Adolf  Bastian,  whose  contri- 
butions are  mainly  ethnological,  serving  to  illustrate  the  descriptive 
data;  of  Paul  v.  Lilienfeld,  whose  position  is  similar  to  that  of 
Schäffle;  of  Gustave  le  Bon,  who  applies  to  sociology  the  principles 
of  psychology  and  mental  evolution;  of  Letourneau,  who  em- 
phasizes the  comparative  study  of  social  organization  in  animal 
societies  and  among  primitive  peoples;  of  Roberty,  who  treats 
sociology  philosophically;  of  Lippert,  who  approaches  the  subject 
with  a  special  interest  in  the  science  of  religion;  of  Worms,  who 
considers  society  a  distinctive  organism;  of  Giddings,  who  regards 
society  as  a  complexly  organized  expression  of  psychological  forces, 
and  says,  on  p.  420  of  his  "Principles  of  Sociology":  "Certainly 
it  is  not  a  physical  organism.  Its  parts,  if  parts  it  has,  are  physi- 
cal relations.  ...  A  society  is  an  organization,  partly  a  product 
of  unconscious  evolution,  partly  a  result  of  conscious  planning.  An 
organization  is  a  complex  of  physical  relations";  of  Ludwig  Stein, 
who  has  touched  upon  several  phases  of  sociology  as  reflected 
in  philosophy,  in  law,  and  in  practical  movements;  oi  Ernst  Victor 
Zenker,  who  traces  the  development  of  society  from  its  most 
primitive  stages  to  its  most  complex  differentiation  in  the  interests 
of  a  general  philosophical  interpretation ;  of  Coste,  who  emphasizes 
the  objective  character  of  sociology,  which  finds  its  material  in 
history  and  ethnology  ("Society  must  be  studied  as  though  we 
formed  no  part  in  it,  as  though  we  were  not  men  belonging 
to  this  planet");  of  Heinrich  Schurtz,  who  traces  the  fundamen- 
tal forms  which  society  assumes;  of  Friedrich  v.  Baerenbach,  who 
presents  a  convenient  survey  of  the  sociological  positions;  of  Paid 
Barth,  who  takes  a  sociological  view  of  the  history  of  culture, 
and  of  the  phenomena  of  comparative  psychology;  of  Lester  F. 
Ward,  who  interprets  the  movements  and  forces  of  modern  society 
as  illustrations  of  comprehensive  sociological  principles.  (See  also 
bibliographical  note  in  §  51.)  As  a  bibliographical  guide  to  these 
writers,  reference  may  be  made  for  Le  Bon  to  his  "L'Homme  et  les 
Socieles,  leursOrigines  ct  Icur  Ilistoire."  Part  I:  "L'Homme,  Devel- 
opijcnient  Physique  el  Intelleclucl."  Part  11:  "Les  Societes,  leurs 
Origines  et  leur  Ueveloppcmcnt,"  Paris  ISSl  (particularly  pp.  287- 


§44]  SOCIOLOGICAL  SCHOOL  365 

5:  Recent  Representatives:  Tönnies,  Klöppel,  Berge- 
MANN.  The  distinction  of  Ferd.  Tönnies  ^  rests  upon 
his  separation  of  the  terms  "community,"  "Gemein- 
schaft," and  "society,"  "Gesellschaft,"  and  upon  his 
original  development  of  these  conceptions  as  expressions 
of  the  human  will.  Every  contact  of  human  wills  has  a 
mutual  effect.  In  so  far  as  each  tends  to  support  the 
other,  they  are  affirmative,  make  for  a  "unity  in  the 

317,  344-392);  for  Letourneau,  "La  Sociologie  d'apres  I'Ethnogra- 
phie,"  Paris  1880;  for  Roberty,  "La  Sociologie,  Essai  de  Philosophie 
Sociologique,  Paris  1881;  {or  Lippert,  Der  Seelenkult  in  seinen  Bezie- 
hungen zur  althebräischen  Religion,"  Berlin  1881;  "Die  Religionen 
der  europäischen  Kulturvölker,  der  Litauer,  Slaven,  Germanen, 
Griechen  und  Römer,  in  ihrem  geschichtlichen  Ursprung,"  Berlin 
1881;  "Allgemeine  Geschichte  des  Priestcrtums,"  1883,  1884;  and, 
"Die  Geschichte  der  Familie,"  Stuttgart  1884;  for  Worms,  "Organ- 
isme  et  Societe,"  Paris  1896  (particularly  pp.  17-41);  iorGiddings, 
"Principles  of  Sociology,"  New  York  189G;  for  Ludwig  Stein,  "Die 
soziale  Frage  im  Lichte  der  Philosophie,"  second  edition  1903,  and, 
"Wesen  und  Aufgabe  der  Soziologie,"  an  address  at  the  third 
sociological  congress  in  Paris,  1897;  for  Zenker,  "Die  Gesellschaft," 
Vol.  I,  1899,  Vol.  II,  1903;  for  Coste,  "Les  Principes  d'une  Sociologie 
Objective,"  Paris  1899  (particularly  pp.  26-.51,  104-111);  for 
Heinrich  Schurtz,  "Altersklassen  und  Männerbünde,"  Berlin  1902 
(particularly  pp.  173-189);  for  Friedrich  v.  Baerenbach,  "Die  Sozial- 
wissenschaften," Leipzig  1882;  for  Paul  Barth,  "Die  Philosophie  der 
Geschichte  als  Soziologie,"  Leipzig  1897.  A  suitable  introduction 
to  the  study  of  sociology  is  that  by  R.  Eisler,  "Soziologie.  Die 
Lehre  von  der  Entstehung  und  Entwickelung  der  menschlichen 
Gesellschaft,"  Leipzig  1903.  In  addition,  the  "Archiv  für  soziale 
Gesetzgebung  und  Statistik,"  Vol.  I  to  XX;  N.  S.  Vols.  I  and  II, 
1904-05,  contains  a  survey  of  the  social  conditions  of  all  lands. 
The  first  18  volumes  were  edited  by  Heinrich  Braun,  and  the  later 
volumes  by  Sombart,  Max  Weber,  and  Edgar  Jaffc. 

1  His  chief  works  are:  "Gemeinschaft  und  Gesellschaft.  Abhand- 
lung des  Kommunismus  und  des  Sozialismus  als  empirischer  Kultur- 
formen," Leipzig  1887.  Also  "Über  die  Grundtatsachen  des  scjzialen 
Lebens"  ("Ethisch-sozialwissenschaftliche  Vortragskurse,"  published 
by  the  Swiss  society  for  ethical  culture,  Vol.  VII),  Bern  1897. 


366  SOCIOLOGICAL   PHILOSOPHIES    [Ch.  VII 

plurality,  or  a  plurality  in  the  unity."  The  group 
resulting  from  this  positive  relation  is  called  an  associa- 
tion. "The  relation  itself,  and  hence  the  association, 
is  to  be  regarded  either  as  a  real  and  organic  life,  which 
is  characteristic  of  the  community,  or  as  an  ideal  and 
mechanical  formation,  which  is  the  concept  of  society." 
A  community  is  the  primitive  living  together  of  men 
as  conditioned  by  natural  lines  of  kinship,  ■ — ■  community 
cf  blood  or  propinquity,  community  of  habitat.  The 
communal  relations  extend  from  the  home  to  the  village, 
tribe,  nation,  and  city.  Within  the  city  appear  dis- 
tinctive communal  relations  based  upon  community  of 
worship,  fraternal  orders,  the  religious  congregation, 
"Gemeinde,"  "the  last  being  the  supreme  expression  of 
the  idea  of  community." 

In  comparison  with  commimity,  society  is  an  artificial 
and  external  product  of  civilization,  "Society  is  an 
aggregate  formed  by  convention  and  natural  law,  and 
is  conceived  as  a  composite  of  individuals  bound  by 
natural  and  artificial  ties,  whose  wills  and  spheres  of 
activity  are  variously  related,  and  yet  remain  inde- 
pendent without  reciprocal  subjective  influence."  So- 
ciety is  the  world  of  affairs,  particularly  of  business, 
dealing  with  contract,  trade,  money,  credit,  etc.  Society 
tends  towards  the  world's  markets  and  great  cities. 

For  Tönnies  the  will  or  intent  is  the  standard  cri- 
terion differentiating  between  community  and  society. 
The  will  develops  in  two  directions,  either  as  a  natural 
will,  "the  psych. ological  eciuivalent  c-f  the  human  l)ody 
or  llic  ])rin(i])lc  <  f  the  unil\'  of  life,"  or  as  an  artificial 
])ro(luct,  as  "the  issue  of  thought."  The  first  of  these 
])hascs  he  calls  "Wesenwille,"  the  will  as  it  is  by  nature, 
llie  second,  "Willkür,"  arlntrary  will.  The  natural 
w  ill  si)i)nian('()usly  leads  or  dis])os(>s  to  community,  while 
ihc  ailiilrai  \  will  leads  to  societ\  .      All  social  phenomena 


§44]  SOCIOLOGICAL  SCHOOL  367 

are  derived  either  from  the  natural  will  or  from  the 
arbitrary  will.  The  community  exjiresses  itself  in  law 
primarily  as  it  affects  the  individual,  "the  self,"  or 
"subjective  agent  of  the  naturell  will,"  and  as  it  affects 
possession,  real  estate,  and  the  family.  Society  appears 
in  law  as  it  affects  the  person,  that  is,  recognition  of 
personality  in  the  legal  sense,  as  it  affects  assets,  money, 
and  righls  of  obligation.  Whatever  the  human  will 
produces,  including  the  law,  is  at  once  natural  and  arti- 
ficial. The  trend  of  national  development  is  towards  an 
increasing  social  complexity.^ 

In  his  address,  "Über  die  Grundtatsachen  des  sozialen 
Lebens,"  Tönnies  makes  marriage  and  property  the 
fundamental  facts  of  social  life. 

Klöppel  takes  a  most  comprehensive  view  of  society. 
"Every  variety  of  communal  association  among  men 
belongs  to  the  relations  comprised  under  the  term 
"society."  Society  as  constituted,  or  "natural  society," 
represents  "the  totality  of  all  relations  of  authority  and 
dependence  among  men."  The  social  struggle  creates 
positions  of  vantage.  The  law  intervenes  to  set  limits 
to  these  positions  of  social  vantage  growing  out  of 
economic  conditions.  Historical  development  shows 
that  the  purpose  of  governmental  authority  is  the 
establishment  and  maintenance  of  law  and  order  for 
the  promotion  of  public  welfare.^ 

Paul  Bergemann  may  be  classed  among  the  sociolo- 
gists by  reason  of  his  "Ethik  und  Kulturphilosophie,"  ^ 
in  which  he  represents  the  ethos  as  the  resultant  of  the 

1  "Gemeinschaft  und  Gesellschaft,"  pp.  3;  9-45,  27,  284-287, 
289  seq.,  290-292;  46-95,  287-290;  99-194,  99  seq.,  183,  206-209, 
212  seq.,  230;  212-217;  227  seq.,  245  seq.,  289  seq. 

2  "Staat  und  Gesellschaft,"  Gotha  1887,  pp.  6;  9;  153  seq.,  281 
seq. 

3  Leipzig  1904,  pp.  69-72. 


368  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

rivalry  between  two  classes.  "Out  of  this  struggle 
there  emerges  the  moral  'pathos,'  .  .  .  and  ultimately 
there  prevails,  as  morality,  as  custom  sanctioned  by 
morals,  the  platform  of  the  victorious  party  —  whether 
liberal,  adjusted  to  the  newer  conditions,  or  conserva- 
tive of  the  older  traditions."  ^ 

6:  Critical  Summary  of  the  Sociological  Position. 
The  meritorious  service  of  the  sociological  school  consists 
in  its  dispossession  of  the  individualistic  position  of  the 
older  doctrines  through  its  emphasis  of  the  importance  of 
the  group,  the  class,  the  social  solidarity.  Nor  is  it 
fair  to  minimize  this  service,  as  Adolf  Merkel  and  others 
have  done,  by  ol)iccting  that  the  group  or  class  is  com- 
posed of  individuals,  and  that  these  are  the  true  agents 
of  the  processes  which  sociology  ascribes  to  tl:e  group. 
The  group  as  such  rci)rcsents  a  social  point  of  vantage, 
— •  a  surplus  of  power  above  that  of  the  individuals  com- 
posing the  group.  The  correct  emphasis  of  this  fact 
remains  to  the  credit  of  sociology.  The  serious  fault 
of  the  soci(jlogical  school,  particularly  as  cx])Ounded  by 
(lumi)lowicz,  is  its  onc-sidedness.  This  ai:)i)ears  first  in 
the  com])lete  absorption  of  the  individual  in  the  class. 
His  position  and  efficiency  as  an  individual,  apart  from 
his  status  as  a  member  of  the  gnjup,  are  completely 
ignored  or  denied.  The  individual  is  considered  fatal- 
isticalK',  as  detcrininc'd  1)>'  inherited  or  imjioscd  in- 
fluences; his  s])()ntaneity  and  initiati\e  arc  not  taken 
into  consideration.  Although  sociology  replaces  the 
doctrine  of  nalural  law- — acconhng  to  which  the  State 
is  com])osed  of  in(Hviduals  all  occup>  ing  a  like  ]iosition 
■ —  by  the  correct  view  according  to  which  mankind  was 
always  sociali/cd,  it  nonetheless  falls  into  an  error 
analogous  to  that  of  the  naturalistic  concei)ti()n.  For 
while   nalural    law    regards   the   State   as   com]X)sed   of 

'  "I''Lhik  iiml    K'lill  III  pliilo-opliic,  p.  70.      Also  alioNc,    §42. 


§44]  SOCIOLOGICAL  SCHOOL  369 

units,  Gumplowicz  regards  it  as  similarly  composed  of 
aggregates  or  groups;  and  the  State  becomes  the  con- 
flict of  groups.  The  independent  existence  of  the 
State  and  of  economics  for  their  own  ends  disappears. 
Of  the  three,  the  individual,  the  group,  and  the  State, 
Gumplowicz  recognizes  only  the  group.  For  socialism 
the  economic  group  is  everything,  and  the  State  and  the 
individual  are  nothing;  so  with  Gumplowicz,  the  indi- 
vidual and  the  State  disappear  in  the  ethnological  group. 
In  the  second  place,  the  State  is  slighted  by  the  sociol- 
ogist in  that  its  functions  are  replaced  by  the  so-called 
social  functions,  which  in  reality  form  a  part  of  national 
and  public  life.  Thirdly,  the  sociological  school  over- 
emphasizes the  factor  of  conflict  in  the  rivalry  of  the 
several  classes  for  supremacy  and  vantage.  The  factors 
of  morality  which  antagonize  conflict  are  not  recognized 
and  acknowledged  in  their  true  importance.^  Man  is 
made  merely  a  more  highly  organized  type  of  animal, 
and  his  desire  for  power,  his  most  distinctive  charac- 
teristic, the  commanding  importance  of  the  ethical 
side  of  his  nature,  is  disregarded. 

The  service  of  greatest  practical  value  rendered  by 
Gumplowicz  is  his  emphasis,  as  against  the  levelling 
tendencies  of  modern  social  ethics,  of  the  importance 
of  classes,  and  of  the  tendency  inherent  in  each  class  to 
assert  itself  in  its  conflict  with  other  classes.  His 
failure  lies  in  the  one-sided  exaggeration  of  what,  in  its 
place,  is  a  fundamental  sociological  truth. 

7:  Applications  OF  THE  Sociological  Position,  (a)  To 
Corporations.  Otto  Gierke's  (b.  1841)  "Genossen- 
schaftstheorie"  forms  a  corollary  to  sociology.  While 
in  appearance  a  contribution  to  the  history  of  law, 
it    is   primarily    a    contribution    to   sociology    from    the 

^  They  are  regarded  and  considered  only  as  supporting  factors. 
See  Gumplowicz,  "Die  soziologische  Staatsidee,"  pp.  57  seq. 


370  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

point  of  view  of  the  professional  jurist.  His  theory 
bears  the  same  relation  to  the  jurisprudence  of  his  day 
as  sociology  bears  to  political  economy  based  upon  the 
individualistic  position.^  "What  man  is  he  owes  to 
association  among  men."  These  introductory  words 
express  the  thought  which  is  elaborated  into  the  central 
conception  of  Gierke's  work. 

The  importance  of  association  had  been  neglected 
except  by  Beseler'  (1809-1888),  a  forerunner  of  Gierke. 
In  German  law  the  association  has  always  been  an 
important  legal  institution.  Association  falls  under 
the  generic  type  of  the  corporation;  as  opposed  to  a 
partnership,  a  corporation  in  the  legal  sense  is  based 
upon  a  permanent  co-operation.  Hereby  the  corpora- 
tion acquires  "a  certain  organic  character  which  quali- 
fies it  to  participate  permanently  in  the  life  of  the 
State  and  in  the  law."  Corporations  are  of  two  kinds: 
they  are  either  communities  or  associations.  This  is 
Beseler's  fundamental  principle,^  and  is  the  position 
developed  by  Gierke.  In  its  narrow  and  technical 
sense  an  association   according  to  Gierke  is   "any  cor- 

1  In  addition  to  "Das  deutsche  Genossenschaftsrecht,"  3  vols., 
Berlin  1868,  1873,  1881,  are  to  be  noted:  Gierke,  "Die  Genossen- 
schaftstheorie  und  die  Deutsche  Rechtssprechung,"  Berlin  1887. 
"Das  Wesen  der  menschlichen  Verbände,"  an  address  of  October 
15,  1902,  Leipzig  1902  (particularly  pp.  7  seq.).  "Die  Grundbe- 
griffe des  Staatsrechts  und  die  neuesten  Staatsrechtstheorien" 
("Z.  f.  d.  g.  Staatsw.,"  Vol.  XXX,  1874,  pp.  153-198,  265-335). 
"Über  Laband's  Staatsrecht  und  die  deutsche  Rechtswissenschaft" 
("Seh.  Jahrb."  VII,  Vol.  IV,  1883,  pp.  1-99,  particularly  pp.  29  seq.). 
See  also  Berolzheimer,  "Rechtsphilosophische  Studien,"  pj).-  104- 
115,  111,  note  2;    112,  note  1. 

'"  "Volksrecht  und  Jurislenrechl,"  I.tiijzig  1843;  especially  "Das 
Recht  der  (Jenossenschaft,"  pp.  158-194;  "Begriff  und  Arten  der 
Cienossenschaften,"  pp.  161  169.  See  n\?^o  Gierke,  "Das  deutsche 
Genossenschaflsrecht,"  I,  p.  5. 

^Beseler,  "Volksrechl  niul  Jurislenrechl,"  pp.  161  seq. 


§44]  SOCIOLOGICAL  SCHOOL  371 

poration  voluntarily  formed,  that  is,  an  association 
that  has  independent  legal  personality."  In  a  larger 
sense,  communities  ^  and  the  State  -  itself  may  be 
ranged  under  the  term  "association."  But  State  and 
community  are  more  than  associations;  their  functions 
and  nature  go  beyond  those  of  an  association.^  "As 
against  the  'persona  ficta'  the  theory  of  association 
sets  up  the  conception  of  a  corporation  which  treats 
it  as  a  real  corporate  personality;  and  this  is  the 
essence  of  the  theory  of  association."  ^  The  human 
individual  and  the  human  community  are  true  realities 
possessing  a  unity  of  nature.^  To  this  doctrine  are 
due  the  modern  theories  which  oppose  the  assumption 
of  a  legal  fiction  in  regard  to  juristic  persons  —  a  fiction 
surviving  through  inertia. 

^  "Das  deutsche  Genossenschaftsrecht,"  I,  pp.  207  seq. 

"^Gierke,  "Die  Grundbegriffe,"  etc..  Vol.  XXX,  pp.  304  seq.: 
"Among  the  social  institutions  of  men  the  State  is  conspicuous. 
The  essence  of  association  within  the  State  consists  in  its  supreme 
power  to  carry  out  the  general  will.  It  represents  the  collective 
political  life.  Its  essence  is  the  general  will;  its  manifestations, 
organized  authority;  its  purpose,  conscious  action."  Accordingly 
the  State  has  "a  real  and  peculiar  nature"  (p.  30.5).  "The  law  of 
the  State  invests  its  personal  representatives,  and  corporate  law 
invests  the  personality  of  corporations,  with  the  qualities  derived 
from  the  nature  of  the  State  or  of  the  corporation,  which  give  such 
personal  representation  the  value  of  a  collective  personality" 
(p.  321).  Gierke,  "Das  Wesen  der  menschlichen  Verbände,"  etc., 
p.  12:  "The  organic  view  regards  the  State  and  other  associations 
as  social  organisms;  it  posits  the  existence  of  composite  organisms 
(the  parts  of  which  are  human  beings)  as  above  individual  organ- 
isms." See  also  Gierke,  "Laband's  Staatsrecht  und  die  deutsche 
Rechtswissenschaft,"  p.  31. 

^Gierke,  "Das  deutsche  Genossenschaftsrecht,"  I,  p.  5. 

^Gierke,  "Die  Genossenschaftstheorie  und  die  deutsche  Recht- 
sprechung," p.  5. 

^  "Die  Grundbegriffe  des  Staatsrechts  und  die  neuesten  Staats- 
theorien" ("Z.  f.  d.  g.  Staatsw.,"  Vol.  XXX,  p.  301). 


372  SOCIOLOGICAL  PHILOSOPHIES    [Cii.  VII 

The  law  dealing  with  the  individual  has  its  co-ordinate 
counterpart  in  the  law  of  association.^  This  law  is 
social  law  when  applied  to  the  largest  social  interests, 
culminating  in  the  law  of  the  State.  The  two  great 
varieties  of  social  organizations  in  German  law  are 
associations  and  the  foundations  which  form  their 
complement.  The  theory  of  association  is  completed 
by  the  theory  of  foundations. 

Gierke  clarifies  the  legal  character  of  associations  in 
German  law,  and  throws  light,  from  more  than  a  techni- 
cal aspect,  upon  the  importance  of  the  social  structures 
which  are  legally  organized  and  co-ordinate  with,  as 
well  as  in  part  transcending,  the  status  of  the  individual 
and  his  legal  rights. 

(b)  Penology.  The  dominant  tendency  in  crim- 
inology is  sociological.^  Fcrri  ^  (b.  1856)  may  be 
considered  the  founder  of  the  sociological  or  positive 
criminology,    and    von    Liszt  ^     (b.     1851)    its    leading 

^"Die  Genossenschaftstheorie,"  etc.,  pp.  6  seq.,  10,  10  seq. 

2 1».  Liszt,  "Lehrbuch  des  Deutschen  Strafrechts,"  twelfth  and 
thirteenth  edition,  Berlin  1903,  pp.  65-88.  Auer,  "Soziales  Straf- 
recht, Ein  Prolog  zur  Straf rechtsreform."  Munich  1903,  pp.  1-8. 
Berolzheimer,  "Die  Entgeltung  im  Slrafrechtc,"  Munich  1903,  pp. 
136-14.5,  153-158,  446-480. 

The  sociological  school,  in  the  persons  of  its  founders  Fcrri  and 
Garofalo,  took  its  origin  from  Lombroso's  criminal  anthropology. 
The  anthropological  phase  of  the  subject,  which  considered  the 
physical  and  psychological  deviations  of  the  criminal  from  the 
average  man  as  its  fundamental  position  and  the  basis  for  classifica- 
tion of  criminals,  has  a  further  value  for  penological  reform  in  so 
far  as  its  conclusions  are  responsible  for  the  recognition  in  legal 
procedure  of  states  of  diminished  responsibility  —  a  problem  brought 
f(jrward  by  the  sociological  criminologists. 

^The  chief  works  here  pertinent  are  Ferri,  "Das  Verbrechen  als 
soziale  ICrscheinung"  (the  Cicrinan  vei^ion  by  Kurclhi),  "Bibliothek 
f.  Sozialwissenscliaflen,"  \iil.  \'lil,  l.cip/ig  1S(I6. 

*  Articles  to  be  speiiall>  iiolcd  are  "Der  Zweckgedanke  im 
Strafreclit,""Z.  f.  d.g.  Str.,"\ol.  Ill,  1883,  i)p.  1-47.     "Die  psycho- 


§  44 1  SOCIOLOGICAL  SCHOOL  373 

exponent.  Its  most  distinguished  representatives  are 
Prins  (Brussels),  G.  A.  van  Hamel  (Amsterdam),  and 
von  Liszt.  These  men  are  the  founders  of  the  "Inter- 
national Union  of  Criminal  Law,"  which  affords  a 
opportunity  for  all  interested  in  criminal  sociology  to 
unite  in  practical  efforts  with  theoretical  students  inter- 
ested in  the  administration  of  punishment.  Tj  the 
above  names  there  should  be  added  Finger^  (b.  1858), 
von  LilienthaP  (b.  1853),  the  psychiatrist  Aschaffen- 
burg,3    Garofalo,*  Sighele,^   Karl  Stooss''  (b.    184f)   and 

ogischen  Grundlagen  der  Kriminalpolitik,  "Z.  f.  d.  g.  St.,"  Vol. 
XVI,  1896,  pp.  477-517.  "Lehrbuch  des  Deutschen  Strarrechts," 
pp.  65-88.  V.  Liszt  is  one  of  the  founders  and  publishers  of  the 
''Zeitschrift  für  die  gesamte  Strafrechtswissenschaft." 

^  "Das  Straf  recht"  ("Kompendien  des  Österreichischen  Rechtes," 
Vol.  I),  Berlin  1894,  pp.  2-26.  "Lehrbuch  des  Deutschen  Straf- 
rechts," Berlin  1904,  pp.  1-45. 

^  "Der  Stooss'sche  Entwurf  eines  schweizerischen  Strafgesetz- 
buchs" ("Z.  f.  g.  Str.,"  Vol.  XV,  1895,  pp.  97-1,58,  250-3.56.  v. 
Lilicnthal  is  associate  editor  of  this  journal. 

^  "Die  verminderte  Zurechnungsfähigkeit,"  "Ärtzliche  Sachver- 
ständige Zeitung,"  V,  p.  397.  "Alkoholgenuss  und  Verbrechen,  eine 
Kriminalpsychologische  Studie"  ("Z.  f.  d.  g.  Str."),  Vol.  XX,  pp.  80- 
100.  "Das  VY'rbrechen  und  seine  Bekämpfung,  Kriminalpsycholo- 
gie für  Mediziner,  Juristen  und  Soziologen,  ein  Beitrag  zur  Reform 
der  Strafgesetzgebung,"  Heidelberg  1903. 

The  "Monatschrift  für  Kriminalpsychologie  und  Strafrechts- 
reform," Vol.  I,  Heidelberg  1904-05,  is  edited  by  Aschaffenburg, 
assisted  by  Alf.  Klotz,  v.  Lilienthal  and  v.  Liszt. 

^  "Criminologia"  ("Bibliotheca  Anthropologico-Giuridica,"  Ser.  I, 
Vol.  H),  1885. 

^"Psychologie  der  Massenverbrechen"  (trans,  by  Kurella), 
Dresden  and  Leipzig  1897.  See  also  below,  §  49.  For  Tarde,  see  also 
§49. 

®  "Vorentwurf  zu  Einem  Schweizerischen  Strafgesetzbuch."  Gen- 
eral Part :  Prepared  by  Karl  Stooss  (translated  at  the  same  time  by 
Alfred  Gautier  into  French),  Basle  and  Geneva  1893.  "Motiv  zu 
dem  Vorentwurf  des  Schweizerischen  Strafgesetzbuchs."  General 
Part.      Karl  Stooss,  Basle  and  Geneva  1893.     The  position  of  this 


374  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  vii 

Lammasch '^  (b.  1853).  This  school  considers  crime 
as  a  social  piieiiomcnon,  as  an  anti-social  act  that  must 
be  suppressed  by  society.  The  function  of  the  law  is  to 
protect  social  interests.  The  penal  law  is  the  intcn- 
si\e  protection  of  those  interests  that  stand  in  peculiar 
need  of  protection,  that  is,  of  legally  recognized  property. 
Doubtless  the  sociological  position  as  applied  to 
penology  cannot  be  completely  established;^  and  the 
discussions  by  penologists  on  the  old  and  ever  insoluble 
question  of  the  freedom  of  the  will  —  which  is  made 
necessary  by  the  issue  of  determinism,  and  which  has 
caused  a  sharp  division  in  the  ranks  of  criminologists^ 
■ —  recall  the  scholastic  disputations.     Nonetheless  it  is 

project  is  given  by  Stooss  (p.  84)  in  this  statement:  "A  penal  law 
accomplishes  its  purpose  only  when  it  proves  effect i\e  in  reducing 
crime." 

Stooss,  "Der  Kampf  gegen  das  \'erbrechcn,"  Lecture  1S94. 
"Schweizerisches  Strafgesetzbuch,"  Basle  and  Geneva  1894.  Stooss 
is  the  editor  of  "Schweizerische  Zeitschrift  für  Straf  recht." 

^The  'v.nrks  oi  Lammasch  here  pertinent  are  the  following:  "Krimi- 
nalpolitische Studien"  ("Im  Gerichtssaal,"  Vol.  XLIV,  1891,  pp.  1-47- 
248);   and  various  smaller  essays). 

^Article  II  of  the  Constitution  of  the  I.  K.  V.  (International 
Union  of  Criminal  Law)  in  a  series  of  theses  states  the  position  of 
the  society.  The  first  thesis  expresses  the  fundamental  purpose: 
"The  purpose  of  punishment  is  to  make  war  upon  crime  as  a  social 
phenomenon."  Punishment,  however,  is  not  the  sole  instrument  in 
this  movement.      (Thesis  3.) 

The  statutes  vary  as  recorded  in  (he  proceedings  of  the  Inter- 
national Union  (Vol.  I,  Berlin  and  Brussels  1889).  See  below 
§  47  for  "Die  Strafgesetzgebung  der  Gegenwart  in  Rechtsvergleich- 
cnder  Darstellung."  Kitzinger  gives  an  account  of  the  workings 
of  the  International  Union  in  "Die  Internationale  Kriminalistische 
W'rcinignng.  Betrachtungen  über  ilu'  Wesen  und  ilne  Bisherige 
Wirksamkeit,"  Munich  1905. 

^Bvrolzhcimcr,  "Die  1  iiIkcIi  uTig  im  Strafrechte,"  pp.  40  109,  157, 
3/)l  seq.,  4.'57  s((|.,  4  11,  and  the  biI)M()grai)hy  there  referred  to. 
Also  Bcrolztuinicr,  "l\iilitsplnl()M>phisrlie  Sliidieii,"  pp.   '')    14. 


§45]  REALISTIC  TRENDS  375 

generally  recognized  that,  especially  in  its  practical  pro- 
posals, this  school  represents  the  progressive  party  in 
penology. 

§  45.  Realistic  and  Historical  Trends  in  Political 
Economy  and  Sociology.  Modern  political  economy 
depends  for  its  material  upon  history,  observation,  and 
statistics;  in  other  words,  upon  the  empirical  study  of 
facts.  This  the  survey  of  recent  literature  abundantly 
indicates.  Confining  the  presentation  to  its  chief  repre- 
sentatives, we  may  mention  as  earliest  Knies^  (1821- 
1898),  who  distinctly  takes  the  historical  position;  and 
L.  Brentano-  (b.  1844),  who,  commenting  upon  the  failure 
of  the  classical  school,  concludes  that  "the  only  method  is 
that  of  direct  observation  of  economic  phenomena." 
Accordingly,  "special  or  practical  economics  must  be 
emphasized,  and  the  general  or  theoretical  considerations 
must  be  assigned  a  subordinate  place.  Indeed  there  is  no 
general  economics.  Any  given  economic  relation  is  based 
either  upon  agriculture,   or  industry,  or  commerce,  or 

1  Knies,  "Die  Politische  Ökonomie  vom  Geschichtlichen  Stand- 
punkte," a  new  edition  of  "Politische  Ökonomie  vom  Stand- 
punkte der  Geschichtlichen  Methode,"  Braunschweig  1883,  p.  23: 
"The  historical  development  of  political  economy  has  up  to  the 
present  been  considered  merely  as  a  subject  of  historical  investi- 
gation and  presentation.  .  .  .  One  must  be  prepared  for  the 
question,  'What  purpose  is  served  nowadays  by  tracing  the  historical 
evidence  for  the  theoretical  opinions,  ends,  and  arguments  of  former 
ages,'  since  all  such  contributions  have  long  since  been  superseded  and 
are  now  regarded  as  negligible  or  unsound.  .  .  .  The  complete  reply 
to  this  objection  will  appear  in  due  course.  At  the  moment  I  note 
that  the  lack  of  consideration  of  the  historical  development  of  eco- 
nomic conditions,  as  well  as  of  the  principles  of  political  economy, 
must  affect  disadvantageously  the  position  and  service  of  a  science 
that  is  closely  dependent  upon  an  understanding  of  reality  and  which 
must  conceive  its  purpose  in  an  historical  evolutionary  spirit." 

^L.  Brentano,  "Die  Klassische  Nationalökonomie."  An  address 
delivered  April  17,  1888  (Leipzi-  1888,  pp.  20-28,  2^  seq.). 


376  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

trade,  or  service,  or  capital;  and  economic  observations 
are  possible  only  in  these  several  fields.  Hence  the  large 
number  of  studies  in  Germany  in  applied  economics 
during  the  last  decades.  Theoretical  economics  has 
not  been  slighted,  but  the  reconstruction  of  the  science 
has  required  fresh  material.  Those  who  accept  this 
position  will  naturally  regard  the  historical  study  of 
economic  development  and  the  description  of  present 
economic  conditions  as  of  prime  importance;  and  this 
not  because  concrete  conditions  are  decisive,  or  because 
the  theory  of  economics  is  to  be  replaced  by  its  history, 
but  because  economics  requires  the  same  change  of  front 
which  led  the  natural  sciences  to  abandon  a  priori  deduc- 
tions in  favor  of  an  account  of  facts  and  processes." 
For  Brentano  notes  in  his  address  entitled  "Ethik  und 
Volkswirthschaft  in  der  Geschichte,"^  that  the  direct 
observation  of  concrete  phenomena  leads  to  an  insight 
into  "what  in  a  given  phenomenon  is  due  to  the  inherent 
nature  of  things,  and  what  to  accidental  circumstances." 
"All  influence  (of  the  State)  upon  the  social  life  may  be 
regarded  as  desirable  and  just,  only  in  so  far  as  it  does 
not  oppose  the  nature  of  things  of  which  natural  evolu- 
tion is  a  part."  Empiric  observation  leads  to  "a  dis- 
tinction between  necessary  factors  and  accidental 
circumstances."'^  Overlooking  the  fact  that  this  view 
contains  a  suggestion  of  the  Stoic  or  the  physiocratic 
position  in  its  assumption  of  a  "recognized  nature  of 
things"  and  vi  "necessary  factors,"  one  may  ask 
h(jw  shall  tlic  observer  of  economic  development  sep- 
arate the  essential  from  the  accidental  or  al)normal? 
How  can  observalion  determine  whetlui-,  and  to  what 
extent,  socialism,  or  miners'  strikes,  or  combinations, 
or    trusts,    or    general    strikes,    are    juslified?     A   study 

»  November  2S,   1901;    scroiid  (dilion,   Miiiiidi    l(t()2. 

2  Pp.  y:{,  ;5s. 


§45]  REALISTIC  TRENDS  377 

of  facts  can  merely  determine  facts,  but  does  not 
afford  a  standard  for  n  critical  view  of  actual  conditions 
nor  a  proper  basis  for  reform.  While  SchmoUer  (b. 
1838),  the  most  distinguished  political  economist  of 
the  present  day,  endorses  the  point  of  view  of  the  his- 
torical school,^  Carl  Mengcr-  (b.  1840),  and  his  Austrian 
associates,  maintain  that  economics  at  present  under- 
values constructive  analysis  and  precise  determina- 
tion of  fundamental  concepts;  and  this  criticism  is 
pertinent.  The  dominant  school  of  political  economy 
is  not  yet  free  from  the  fetters  of  economic  empiricism. 
The  collection  and  selection  of  material  through  histori- 
cal and  statistical  study  too  completely  absorb  atten- 
tion, and  the  fundamental  theoretical  prol)lems  are 
slighted.  The  conviction  must  sooner  or  later  be  reached 
that  an  extreme  attention  to  the  uninterpreted  facts 
can  result  in  no  permanent  advance.  Such  conviction 
would  perhaps  have  been  more  promptly  attained  had 
not  idealism  entered  the  field  of  political  economy  through 
the  dubious  portal  of  social  ethics. 

The  social-ethical  formulation  of  political  economy' 
certainly  does  not  provide  a  satisfactory  substitute.  If 
it  holds  to  its  own  purposes,^  social  ethics  in  reality 
is  applicable  only  to  a  limited  field.     If  disposed  as  it  is 

^  "Zur  Methodologie  der  Staats-  und  Sozialwissenschaften"  ("Sch 
Jahr))."  Vol.  V,  Part  IV,  1SS3,  pp.  239-258);  p.  247:  The  historical 
school  represents  a  return  to  a  scientific  conception  of  reality  in 
place  of  vague  abstractions  lacking  all  reality." 

^  Carl  Menger,  "Untersuchungen  über  die  Methode  der  Sozial- 
wissenschaften und  der  Politischen  Ökonomie  insbesondere,"  Leip- 
zig 1883;  "Die  Irrtümer  des  Historismus  in  der  Deutschen  National- 
ökonomie," Vienna  1884.  (This  is  a  strongly  personal  reply  to 
Schmoller's  attack.)  SclnVler,  "Die  Klassische  Nationalökonomie 
und  ihre  Gegner.  Zur  Geschichte  der  Nationalökonomie  und 
Sozialpolitik  seit  A.  Smith,"  Berlin  1895. 

3  See  above,  §  42. 


378  SOCIOLOGICAL  PHILOSOPHIES    [Cii.  \  II 

at  present  to  encroach  upon  the  entire  domain  of  hiw 
and  economics,  it  is  Hkely  to  obstruct  a  sound  legal  and 
economic  philosophy,  and  to  obscure  and  distort  by 
vague  phrases  the  fundamental  principles  of  the  philos- 
ophy of  law  and  economics.  For  it  is  pertinent  and 
important  to  consider  that  the  social  phenomena  form 
but  a  section  of  the  larger  sphere  of  government  and 
economics.  The  State  is  the  source  of  law,  and  supplies 
the  formal  bond  of  the  law  which  embraces  and  holds 
together  the  community.  If  the  State  were  to  dis- 
appear, law  would  likewise  go,  for  it  originates  and 
develops  only  in  and  through  the  State;  without  it  society 
would  be  nothing  but  a  loosely  bound  aggregate.  Eco- 
nomics represents  the  content  aspect  of  government  — 
the  conditions  under  which  law  finds  its  application. 
It  is  the  economic  life  that  makes  government  and  law 
something  more  than  empty  terms,  and  endows  them 
with  a  vital  meaning.  If  law  were  to  disappear,  then 
government  and  economics  would  likewise  disappear 
both  in  form  and  substance,  and  what  would  remain 
would  be  society;  or,  expressing  the  same  thought  posi- 
tively, social  life  consists  of  the  free  spontaneous  ex- 
pressions, activities,  and  operaticjus  of  indi\'iduals  and 
of  their  associations  vSO  far  as  these  are  not  an  outcome  of 
the  law.  The  members  of  the  community  in  their  spon- 
taneous activities  form  society,  and  the  part  which 
society  plays  is  thus  limited.  The  importance  of  society 
lies  in  its  supplementing  of  government  and  law  in  sit- 
uations which  the  latter  cannot  and  should  not  coxer; 
and  again,  in  the  cultural  preparation  which  it  supplies, 
in  the  curriMits  of  interest  which  it  starts,  that  in  turn 
lead  to  clianges  in  go\-ernnient  and  law. 

However  there  are  many  good  reasons  why  "society" 
shcniid  be;  assigned  a  large  efficiency  and  scope,  inde- 
pendent   ol    whether   wi'  agrc-e  or   not    that    thi>   goxern- 


§45]  REALISTIC  TRENBS  379 

mental  functions  shall  likewise  be  considered  as  in  part 
belonging  to  its  domain.  Such  extension  of  its  influence 
is  favored  by  historical  study,  which  shows  that  the 
State  is  not  built  up  of  single  individuals  but  is  composed 
of  group  formations  rcpresentati\-e  of  "society."  Yet 
it  is  not  to  l)e  o\'erlooked  that  such  communal  groups 
as  existed  previous  to  the  establishment  of  government 
and  law,  for  which  we  use  the  term  "society,"  are  some- 
thing wholly  different  from  the  "society"  of  the  present 
day.  Primitive  conditions,  it  is  true,  furnish  the  fac- 
tors necessary  for  the  foundation  of  government  and 
law.  For  primitive  times,  primitive  society  satisfied  the 
needs  which  at  present  require  the  joint  activities 
of  government  and  society.  The  society  of  primitive 
times  embraced  the  entire  range  of  communal  interests, 
while  the  "society"  of  the  twentieth  century  represents 
such  communal  interests  as  are  sustained  apart  from 
government  and  law.  Pre-governmental  society  and 
society  within  an  established  State  are  wholly  distinct. 

The  socialistic  position  favors  the  view  of  society  as 
absorbing  the  State;  it  replaces  the  State  as  it  now  is 
by  the  State  as  it  will  come  to  be;  yet  such  a  State  of 
the  future  is  no  longer  a  State  in  the  technical  sense, 
but  the  replacement  of  the  State  by  "society."  Social- 
ism regards  the  State  as  a  systematic  economic  and  polit- 
ical oppression  of  the  working  classes  by  the  minority 
of  capitalists  and  ruling  interests.  In  place  of  this 
autocracy  based  upon  the  arbitrary  and  unrestricted 
control  by  capital,  it  advocates  the  associative  organiza- 
tion of  manufactures  and  resources,  the  regulation  of 
labor,  and  the  fair  distribution  of  wages.  The  whole 
of  public  economic  life  is  to  be  comprehended  in  a  sort 
of  universal  company,  organized  to  control  all  public 
affairs;  and  such  a  company  would  be  "society."  Accord- 
ingly the  socialistic  State  of  the  future,  which  socialism 


380  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

regards  as  a  just  State,  by  absorbing  the  State  in  "so- 
ciety," would  replace  capitalistic  control,  and  establish 
a  just  law  instead  of  class  legislation.  Thus  society 
assumes  its  place  in  the  philosophy  of  government  as 
the  supposed  representative  of  a  just  economic  order 
and  organization  — -  with  the  implication  that  govern- 
ment and  law,  as  at  present  formulated,  involve  injus- 
tice. These  socialistic  views  of  justice  make  social  ethics, 
social  politics,  social  reform,  the  true  expression  of  a 
righteous  social  order;  they  stand  for  the  higher  and 
the  better,  as  against  the  unjust  defective  government 
and  law  of  the  present.  This,  however,  is  the  converse 
of  the  true  relation;  instead  of  considering  society  as 
a  division  of  the  State,  the  State  is  made  to  appear  as 
subordinate  to  society,  and  in  addition,  as  an  imperfect 
unregenerate  institution. 

Finally,  the  exaggerated  importance  attached  to  "so- 
ciety," and  to  "social  ethics"  resulting  therefrom,  is, 
in  my  humble  opinion,  due  to  the  fact  that  too  many 
non-jurists  occupy  themselves  with  the  philosophy  of 
government  and  law,  and  therefore  are  disposed  to  re- 
place the  definite,  though  complex  and  difficult  concep- 
tion of  government  and  law,  l)y  the  more  elastic  and 
vague  one  of  society.  "Society"  is  more  readily  man- 
aged; it  is  like  a  lay  figure  upon  which  any  sort  of  gar- 
ment may  be  neat'y  fitted.  The  definiteness  of  legal 
concei)ts  gives  way  to  the  foggy  confusion  of  social- 
ptilitical,  social-reformatory,  and  social-ethical  discus- 
sions, fertile  in  ])n)i)()sals  that  prove  to  be  valueless  and 
ineffective  when  philosophically  tested.  A  return  to 
legal  and  economic  philosophy  remains  the  sole  scien- 
tific pr()cc(hn-e. 

This  digression  was  necessary  to  make  clear  the  weak- 
nesses of  social  ethics,  'i'he  classical  jiolitical  economy 
regarded    Ino   sliiJilK'    llic    rc;ililics   ;iiid    was    too   much 


§46]  THEORY  OF  NORMS  381 

given  to  speculation;  the  historical-empirical  school 
kept  so  closely  to  the  facts  that  it  slighted  the  theoretical 
foundations  of  economic  principles.  And  though  it  is 
true  that  this  school  regarded  the  collection  and  order- 
ing of  its  material  as  a  preparatory  procedure  to  supply 
the  data  for  a  later  philosophical  construction,  it  is 
much  to  be  feared  that  if  the  material  thus  collected 
is  all  that  is  available,  the  construction  will  be  indefinitely 
postponed.  Like  brick  and  mortar,  facts  need  the  well- 
devised  plan  of  an  architect;  the  plan  cannot  be  derived 
from  the  building  materials  alone. 

§  46.  The  Theory  of  Norms.  Binding's  (b.  1841) 
"theory  of  norms"  is  derived  from  criminal  law  and 
belongs  primarily  to  general  legal  science.^  It  is,  how- 
ever, of  import  for  the  philosophy  of  law  and  govern- 
ment, in  that  it  upholds  governmental  authority  dis- 
tinctively as  the  type  of  the  legal  imperative.  Binding 
holds  that  what  the  criminal  transgresses  is  not  the 
particular  statute  applicable  to  his  offense,  but  the  under- 
lying norm  or  principle  which  finds  expression  in  such 
statute.^  Criminal  statutes  are  in  the  nature  of  imper- 
atives or  regulating  principles,  designed  "to  provide 
penal  regulations  and  to  determine  their  content  .  .  , 
as  affecting  two  classes  of  persons :    those  possessing  the 

^Binding,  "Die  Normen  und  ihre  Übertretung.  Eine  Unter- 
suchung über  die  Rechtmässige  Handlung  und  die  Arten  des  Delikts." 
Vol.  I:  "Normen  und  Strafgesetze"  (1872),  second  edition,  Leipzig 
1890;    Vol.  II:    "Schuld  und  Vorsatz,"  Leipzig  1877. 

Binding,  "Handbuch  des  Straf  rechts,"  Vol.  I.  {Binding,  "Hand- 
buch der  Deutschen  Rechtswissenschaft,"  VII,  I,  1)  Leipzig  188,5, 
pp.  1.55-222.  "Grundriss  des  Gemeinen  Deutschen  Strafrechts," 
I,  fifth  edition,  Leipzig  1897,  pp.  58-72.  (The  sixth  edition,  Leip- 
zig 1902,  was  not  accessible  to  me.) 

^  "To  be  liable  to  punishment  involves  that  the  offender  must 
have  acted  as  set  forth  in"  [that  portion  of  the  law  which] 
'specifically  characterizes  punishable  actions."     "Normen,"  J,  p.  4. 


382  SOCIOLOGICAL  PHILOSOPHIES    [Cn.  VII 

right  of  punishment  [that  is,  the  right  of  criminal  sanc- 
tion], and  those  against  whom  it  is  directed."  Criminal 
laws  attempt  to  "regulate  .  .  .  the  relation  between 
the  State  and  the  offender;  and  pertain  primarily  to 
the  State  as  the  maker  of  criminal  laws,  and  secondly 
to  the  offender  under  such  laws.  .  .  .  Criminal  statutes 
include  all  legal  principles  which  standardize  the  con- 
ditions of  application,  the  nature  and  the  consequences 
of  violation,  of  the  legally  established  duties  of  criminal 
law."  It  is  the  legal  nature  of  these  norms  that  Bind- 
ing unfolds,  and  ably  and  effectively  develops. 

The  governmental  authority  exercises  a  "right  to 
exact  conformity."  Such  authority  is  forcibly  directed 
against  those  who  do  not  "conform."  As  against  the 
transgressor  "the  law  that  is  transgressed  takes  the 
form  of  a  right  to  coercion  by  reason  of  such  transgres- 
sion. The  person  of  the  one  who  disregards  the  law 
becomes  forcibly  subject  to  the  power  of  the  law,  so  that 
it  may  be  felt  and  known  which  is  master  —  the  will  of 
the  law  or  the  will  of  the  individual.  This  subjection 
to  coercion  in  behalf  of  the  maintenance  of  the  law,  this 
enforced  conformity,  which  is  somewhat  inaptly  de- 
scribed as  an  enforced  retribution  or  satisfaction,  is 
public  punishment  as  history  discloses  it."  "The 
relation  of  [legal]  norms  to  acts,  is  like  that  of  a  condition, 
and  what  is  affected  by  the  condition;  the  latter  must 
be  adapted  to  the  former."  ^ 

Binding's  theory  of  norms  has  gained  more  opponents 
than    adherents.^     The    most    notable    criticism    of    his 

>  "Normen,"  I,  i)]).  19-21,  42:}-42();    II,  p.  54. 

^  Adolf  Merkel,  "Üt)cr  Binding's  Handhiich  des  Strafrechts," 
Vol.  I  ("Z.f.d.Kfs.Str.,"V(jl.  VI,1SS(),  1)1).  r)12seq.).  (Merkel,  "\Vm- 
terlassene  Fragiiunic  und  ('.es.  Al)li.,"  II,  2,  i)]).  .')09-.5li4):  "Be- 
sprechung' von  K.  liiiidini;  'l)if  Normen  und  ilwe  Ubertreliing,' " 
second  edilion  of  \ol.    I    (Mrrhil,   "I  liiilerlasst'iie,"  etc.,   II,  2,  pp. 


§46]  THEORY  OF  NORMS  383 

position  is  that  of  Adolf  Merkel.  He  and  his  followers 
not  unjustly  charge  the  theory  with  an  extreme  emphasis 
of  the  formal  side.^  While  it  is  conceded  that  law  is 
the  result  of  governmental  supremacy,  this  statement 
establishes  merely  an  external  criterion  of  the  nature 
of  government  and  law.  The  legislating  State  that 
formulates  an  enforcible  law  on  the  basis  of  unwritten 
norms  does  not  assume  the  dictatorial  position  of  the 
wielder  of  such  power,  setting  up  an  individual  will  and 
pleasure  against  the  will  of  subjects,  and  suppressing  the 
expression  of  any  rebellious  will.  The  purpose  of  the 
State  is  not  primarily  to  secure  obedience  to  its  suprem- 
acy, but  to  direct  legislation  toward  the  maintenance 
of  individual  rights.  The  legal  order  is  intended  not  to 
restrict,  but  primarily,  to  maintain  rights. 

The  problems  of  the  philosophy  of  law  and  govern- 
ment cannot  be  mastered  from  the  position  of  the  theory 

679-686).  V.  Liszt,  "Rechtsgut  und  Handlungsbegriff  im  Binding- 
'schen  Handbuche."  ("Z.  f.  d.  g.  Str.,"  Vol.  VI,  pp.  670-672.)  Hugo 
Heinemann,  "Die  Binding'sche  Schuldlehre,  ein  Beitrag  zu  ihrer 
Widerlegung."  ("Abh.  des  Kriminalistischen  Seminars  zu  Marburg," 
edited  by  v.  Liszt,  Vol.  I,  Part  IV)  Freiburg  i/B  1889.  v.  Weinrich, 
"Strafrecht  und  Kriminalpolitik.  Ein  Beitrag  zur  Kritik  der 
Normentheorie  und  der  Neuesten  Reformbestrebungen."  "Z.  f.  d. 
ges.  Str.,"  Vol.  XVII,  1897,  pp.  779  seq.  Berolzheimer,  "Die  Entgel- 
tung im  Strafrechte,"  pp.  126-129,  159-168,  and  the  bibliography 
there  noted. 

Zitelmann,  "Irrtum  und  Rechtsgeschäft,"  Leipzig  1879,  p.  221, 
contests  the  imperative  value  of  norms.  Opposed  to  Zitelmann 
see  Heinemann,  "Die  Binding'sche  Schuldlehre,"  pp.  40  seq. 

The  function  of  the  norms  as  a  legal  protection  is  considered  in 
detail  hyOetker,  "Rechtsgüterschutz  und  Strafe"  ("Z.  f.  d.  g.  Str.," 
Vol.  XVII,  pp.  493  seq.).  See  also  Oetker,  "Besprechung  von  Bind- 
ing's Norm.en,"  Vol.  I,  second  edition  ("Z.  f.  ver.  Rechtsw.,"  Vol. 
XVII,  pp.  141-1.54). 

'  Ihering,  "Der  Zweck  im  Recht,"  I,  p.  435:  "Norms  and  coercion 
are  purely  formal  factors  that  afford  no  knowledge  as  to  the  content 
of  the  law." 


384  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

of  norms;  for  this  theory  is  misleading  in  that  it  sets 
up  the  law  as  an  isolated  institution.  But  Binding's 
fundamental  idea  that  the  imperative  norm  forms  the 
essence  of  law  is  a  permanent  contribution  to  legal 
philosophy;  for,  though  one-sided,  the  theory  of 
noims  is  thoroughly  sound  on  its  own  ground.  So 
far  as  concerns  the  second  of  the  two  functions  of 
the  legal  order  —  that  of  safeguarding  rights  and 
that  of  restricting  license  ■ —  the  theory  offers  a  satis- 
factory position. 

Thon^  (b.  1839),  in  "Die  Norm  und  die  Rechtsfolgen 
ihrer  Übertretung,"  pursues  the  study  of  norms  in  the 
spirit  of  Binding.  Norms  are  imperatives.  "The  law 
of  a  community  expresses  its  will;  and  such  expression 
aims  to  regulate  the  conduct  of  those  regarded  as  subject 
thereto.  All  laws  are  imperatives."  The  legal  conse- 
quences of  transgressing  the  norm  likewise  become 
"the  introduction  of  new,  or  the  abolition  of  existing 
imperatives."  Accordingly  "the  aggregate  law  of  a 
community  is  merely  a  complex  of  the  imperatives  which 
are  bound  up  with  one  another  in  so  far  as  the  violation 
of  one  constitutes  the  assumption  for  the  requirement 
to  another."  The  norms  are  differentiated  according  to 
the  purposes  which  legislation  pursues  in  the  establish- 
ment of  its  imperatives.  One  group  comprises  the 
norms  to  which  is  attached  the  legal  consequence  that 
anyone  \'iolating  them  is  subject  to  punishment;  the 
second  group  attempts  so  far  as  possible  to  make  good 
a  wrf)ng,  either  by  restitution  -  or  compensation  or 
security. 

'  "Rechtsnorm  und  Snbjectivcs  Recht.  Untersuchungen  zur 
Allgemeinen  Rechlslchre,"  Weimar,  1S78  p.  09;  1,  8,  7  seq.,  69 
secj. 

*  This  is  Thon's  expression;  what  is  meant  is  a  consequent  neces- 
sity of  restitution  through  the  legal  order. 


§46]  THEORY  OF  NORMS  385 

BiERLiNG^  (b.  1841)  modifies  the  theory  of  norms  ^  by 
his  view  that  "the  constituent  factor  of  law,  and  espe- 
cially of  the  constituted  law,  is  merely  the  acknowledg- 
ment on  the  part  of  those  who  share  it  as  the  norm  of 
their  social  life."  ^  "Accordingly  legislation  imposes 
nothing  more  than  a  duty  because,  and  in  so  far  as 
it  is  recognized  as  a  binding  social  norm  by  the  members 
of  the  State.  An  unconditioned  general  obligation 
towards  the  laws  of  the  State  can  only  exist  because, 
and  in  so  far  as  a  general  norm  is  acknowledged  which 
shall  be  binding  upon  legislation;  or  in  other  words, 
in  so  far  as  a  norm  exists  to  which  every  act  of  legisla- 
tion is  subject  or  appears  to  be  so."  "*      "The  funda- 

^  His  works  are:  "Zur  Kritik  der  Juristischen  Grundbegriffe," 
I,  II,  Gotha  1877,  1883.  Revised  and  enlarged  under  the  title 
"Juristische  Prinzipienlehre,"  2  vols.  Freiburg  i/B  and  Leipzig 
1894,  Freiburg,  Leipzig  and  Tübingen  1898. 

^  Bierling  defines  the  limits  of  jurisprudence  as  against  the  philoso- 
phy of  law  as  follows:  "The  science  of  juristic  principles,  in  the 
sense  here  used,  is  limited  to  a  definite  part  of  the  philosophical 
elaboration  of  law.  It  is  limited  to  the  determination  of  certain 
formal  conceptions  and  principles,  operative  in  legal  practice,  and 
more  or  less  recognized  in  the  several  divisions  of  jurisprudence, 
and  makes  these  the  object  of  special  investigation,  seeking  to 
establish  the  basis,  the  meaning,  and  the  limits  of  their  validity. 
All  further  questions  connected  with  this  position,  that  undertakes 
to  interpret  law  in  the  narrower  sense  with  reference  to  a  general 
view  of  things,  in  other  words,  that  attempts  to  show  the  place 
and  the  significance  attaching  to  law  in  the  collective  order  of  the 
universe, — all  questions  of  this  kind,  the  science  of  jurisprudence 
leaves  untouched.  .  .  .  But  such  problems  constitute  the  peculiar 
domain  of  the  philosophy  of  law." 

^  "Zur  Kritik  der  Juristischen  Grundbegrifife,"  I,  p.  66.  (p.  92): 
"That  this  living  together  [in  the  family]  becomes  a  true  living 
together,  a  true  communal  life  only  through  the  norms  recognized 
by  those  participating  therein."  See  pp.  121,  134  seq.,  158;  Vol.  II, 
pp.  33  and  Appendix  B,  pp.  3.51-364.     See  also  below,  p.  386,  note  3. 

*  "Zur  Kritik,"  etc.,  I,  p.  138.  Also  "Juristische  Prinzipien- 
lehre," Vol.   II,  pp.  3-45:    "Über  die  Entstehung,  Auflösung  und 


386  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  vii 

mental  point  is  to  establish  the  imperative  nature  of 
law";  and  to  this  the  latter  portion  of  "Die Juristische 
Grundbegriffe"  is  devoted.  The  conception  of  the 
permissible  ("Dürfen")  offers  considerable  difftculty  in 
this  treatment  because  it  seems  to  stand  in  contradiction 
to  the  theory  of  norms.  Bierling  considers  it  as  a  mis- 
take to  derive  the  conception  of  duty,  of  what  is  enjoined 
or  forbidden,  from  what  is  permitted.  It  is  nearer  the 
truth  that  "what  is  permitted  or  allowed,  is  simply 
what  is  not  prohibited,  or  more  correctly  speaking,  what 
does  not  stand  in  opposition  to  the  requirements  of  the 
law."  ^  "All  law  consists  of  norms,  and  whatever 
cannot  be  reduced  to  a  norm  does  not  in  reality  belong 
to  the  law."  ^  The  norm  becomes  a  legal  norm  "by 
the  acknowledgment  thereof  on  the  part  of  the  members 
of  the  community  as  their  communal  norm."  Legal 
acknowledgment  is  "an  acknowledgment  of  the  norms 
as  communal,  and  as  applying  between  one  member  of 
the  community  and  another."  ^  Hence  the  law  is 
"whatever  men  who  live  together  in  any  form  of  com- 
munal life  mutually  recognize  as  the  norm  and  regula- 
tion of  such  communal  li\'ing."  '* 

Veränderung  der  Rechtsnormen  und  ihre  Beziehung  zur  Entste- 
hung und  Aufhebung  der  Rechtsnormen." 

i"Zur  Kritik,"  etc.,  11,  pp.  S,  IS;  I,  p.  157;  Vol.   II,  Appendix  A 

pp.  :u)7  :5r.(). 

*  "Juristische  Prinzipienlehre,"  WA.  I,  p.  80.  On  Norms,  see 
pp.  1^0  40;  for  \Mri()us  kinds  of  legal  norms,  see  pp.  71-144;  for 
legal  norms  as  t!ie  content  of  legal  relations,  see  pp.  145-200. 

'"Zur  Kritik,"  etc.,  II,  p.  'Si.  See  also  the  citation  in  note  10. 
Also  "Juristische  Prinzii)ien!ehre,"  Vol.  I,  p.  19;  Vol.  II,  p.  103, 
note  39,  pp.  lo:'.   lit;. 

*  "Jurist isclic  I'rinzipicniclirc,"  I,  j).  19.  On  restitution,  see  pp. 
41-.'')3.  Schuppe,  in  "Die  Methoden  Aw  l\e(lilsi)hilosophii-"  ("Z.  f.  v. 
Kcchtsw.,"  \'i)l.  \',  ]).  270),  agrees  witli  Bierling  with  the  condition 
that  the  principle  (jf  acknowledgment  requires  to  he  perfected. 


§47]      ETHNOLOGICAL  JURISPRUDENCE        387 

The  work  of  Max  Ernst  Meyer,  entitled  "Rechts- 
normen unci  Kulturnormen,"  ^  presents  a  happy  com- 
bination of  the  legal  philosophy  of  Köhler  and  Binding. 
Köhler,  following  Hegel,  emphasizes  the  quality  of  the 
law  as  a  cultural  phenomenon,  and  the  dependence  of 
legislation  upon  the  prevalent  general  culture.^  M.  E. 
Meyer  sets  these  cultural  norms,  which  thus  become 
vitalized  with  a  new  content,  in  the  place  of  legal  norms. 
The  objection  to  be  urged  against  the  theory  of  norms 
in  its  several  formulations,  from  Binding  to  Meyer,  is 
its  one-sidedness,  its  view  of  the  law  merely  as  an  im- 
perative, as  a  restricting  force;  it  recognizes  the  law 
merely  as  imposing  obligation,  while  the  phase  of  the 
law  that  acknowledges,  confirms  and  safeguards  is 
neglected.  Yet  the  latter  phase  is  really  the  essential 
one.  For  example,  the  nature  of  property  does  not 
consist  in  the  fact  that  the  encroachment  thereon  by 
another  is  forbidden,  but  in  its  conferring  of  right, 
in  legally  empowering  the  one  justly  entitled  to  it  to 
use  it,  to  enjoy  it,  and  to  dispose  of  it. 

§  47.  Ethnological  Jurisprudence.  The  study  of  foreign 
law  as  a  basis  for  the  imjirovement  of  legislation  is  not 
an  innovation.  The  laws  of  ancient  Egypt  served  as  a 
model  to  other  countries.  In  such  service  lies  the 
origin  of  comparative  law.  Yet  the  study  that  is  now 
called  "comparative  law,"  and  the  collation  of  laws 
for  professional  purposes,  differ  widely  from  these 
earlier  essays.  Comparative  law  is  not  exclusively  or 
primarily  directed  to  application,  but  pursues  the 
theoretical  purpose  of  finding  a  sounder  foundation  for, 

^  "5e/mg'5  Strafrechtliche  Abhandlungen,"  Heft  L,  Breslau   1903. 

^v.  HoUzendorff- Kohler' s  "Enzyklopädie  der  Rechtswissenschaft," 
p.  6:  "Cultural  demands  supply  the  ideal  which  the  law  of  a 
given  period  attempts  to  meet.  The  law  thus  rests  upon  the  basis 
of  culture."     See  also  below,  §  4S. 


388  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

and  a  deeper  insight  into,  the  fundamental  conceptions 
of  law.  Again,  such  comparison  is  systematic  and 
comprehensive,  aiming  at  universal  principles.  It  is 
in  these  interests  that  a  reference  to  the  results  of 
comparative  law  is  here  pertinent.  By  such  systematic 
and  comprehensive  study  the  philosophy  of  law,  as  well 
as  general  legal  science,  has  acquired  a  new  method, 
comparable  in  value  with  that  of  comparative  linguistic 
study  to  philology.  Yet  neither  in  philology  nor  in 
law  can  the  comparative  method  be  expected  to  pro- 
vide a  universal  solution  of  problems.  The  peculiarly 
important  philosophical  problem  of  the  origin  of  law 
and  government,  comparative  law  cannot  be  expected 
to  solve,  if  for  no  other  reason  than  that  it  r.ver  finds 
the  presence  of  law  and  government  as  a  prerequisite 
for  its  study;  similarly  comparative  philology  cannot 
remove  the  obscurity  attaching  io  the  origin  of  language. 
One  of  the  founders  and  important  contributors  to  the 
ethnological  ^  study  of    law  is  J.    J.  Bachofen   (1815- 

^  As  a  matter  of  terminology  the  division  of  the  modern  science 
of  law  treated  in  this  section  is  in  part  ethnographical,  in  part 
ethnological,  and  in  part  both.  Ethnography  is  the  inductive  and 
descriptive  study  and  presentation  of  any  group  of  facts  from  the 
life  of  peoples.  Ethnology  is  the  deductive,  synthetic  interpreta- 
tion of  ethnographical  results;  it  is  the  synthetic  elaboration  and 
derivation  of  general  laws  of  the  life  of  jieoples.  See  S.  Günther, 
"Ziele,  Richtjjunktc  und  Methoden  der  Modernen  \'ölkerkunde," 
Stuttgart  1904,  pp.  11  seq. 

Upon  the  import  of  comparative  law  sccBenihoft,  "Über  Zweck  und 
Mittel  der  Vergleichenden  Rechtswissenschaft  ("Z.  f.  v.  Rechtsw."), 
\'ol.  I,  Stuttgart  1S78,  pp.  1-3S.  Dahn,  "Vom  Wesen  und  Werden 
des  Rechts"  {"'/..  f.  v.  Rechtsw.",  Vol.  II,  Introduction.  "Die  Rechts- 
xerglcichung  als  (jriuidlage  der  RechtsphiIoso])hic,"  pp.  1-10. 
Bcrfihöfl,  "Über  die  (irundlagen  der  Recht  sent  Wickelung  bei  den 
Indogermanischen  Völkern"  ("Z.  f.  v.  Rechtsw.,"  N'ol.  II,  1S79,  pp. 
(253  32S),  'Z'A  .se(|.  Ertisl  Schuster  (London),  "Die  Traktische 
Bedeutunu  der  VergUii  hcinUri  Ric  htswisscnscliafl   liir  das  l'anr.lien- 


§47]      ETHNOLOGICAL  JURISPRUDENCE       389 

1887),  who  is  the  author  of  "Das  Mutterrecht,"  a  study 
of  matriarchal  government  in  the  ancient  world  in  its 
religious  and  legal  aspect  (Stuttgart  1861).  With  pa 
tient  industry  this  author  gathers  and  correlates  all 
forms  of  legal  institutions  and  enactments  that  lead  to 
the  conclusions  that  a  matriarchy,  which  assigns  prece- 
dence in  civilization  as  in  domestic  arrangements,  to 
the  child-bearing  member  of  the  family,  (survivals  of 
which  may  be  found  in  most  recent  times,)  preceded 
the  patriarchical  form  of  government,  which  gives  prece- 
dence to  the  masculine  factors  in  government,  civiliza- 
tion, and  law,  and  makes  the  father  of  the  family  the 
central  authority.  He  finds  such  evidence  in  myths 
and  sagas,  in  cults,  in  the  accounts  of  ancient  authors, 
and  in  the  Greek  drama. 

Similarly  directed  is  the  other  extensive  work  of 
Bachofen,  '  Antiquarische  Briefe,"  bearing  particularly 
upon  our  knowledge  of  the  ancient  forms  of  relationship 
(2  vols.,  Strassburg  1880,  1886).  There  should  likewise  be 
mentioned  Bachofen's  "Die  Sage  von  Tanaquil,"  a  study 
of  Orientalism  in  Rome  and  Italy.     (Heidelberg  1870.)  ^ 

und  Erbrecht"  ("Jahrb.  der  inter.  Vereinigung  f.  ver.  Rechtsvv. 
und  Volkswirthschaftslehre,"  Vol.  II,  1896,  Berlin  1897,  pp.  71-97.) 
For  what  follows  see  especially  Köhler,  "Enzyclopädie,"  pp.  14-20. 
^  See  the  comments  on  method  by  Köhler  on  J.  J.  Bachofen,  "Die 
Sage  von  Tanaquil,"  and  "Antiquarische  Briefe,"  I-XXX,  Strass- 
burg 1880  ("Z.f.v.Rechtsw."IV),  Stuttgart  1883,  pp.  266-277  (pp. 
275  seq.):  "The  proper  path  which  ethnological  jurisprudence 
must  pursue  is  that  of  studjing  the  several  races  by  the  aid  of  all 
material  bearing  upon  law,  and  then  proceed  to  further  correlations, 
particularly  to  the  treatment  of  myths  and  sagas  from  the  point  of 
view  of  legal  ethnology.  This  procedure  is  more  certain  because 
observation  yields  more  exact  results  than  the  study  of  dubious 
tradition  which  is  never  pure,  but  is  ever  affected  in  its  uncertain 
course  by  biased  editing.  This  method  I  propose  to  pursue  in  my 
work  upon  the  legal  relations  of  primitive  peoples,  and  hope  thus 
to  establish  the  principle  upon  a  firm  basis." 


a9ü  SOCIOLOGICAL  PHILOSOPHIES    [Cn.  VII 

J.  KoHLER  (b.  1849)  is  at  present  the  recognized 
leader  of  the  school  for  the  comparative  study  of  law. 
He  is  the  author  of  numerous  ethnographical  and  ethno- 
logical studies,  and  is  associate  editor  of  the  "Zeitschrift 
für  Vergleichende  Rechtswissenschaft."  In  relation  to 
our  present  topic  his  works  that  are  of  special  importance 
are:  "Shakespeare  vor  dem  Forum  der  Jurisprudenz," 
Würzburg  1884;  "Rechtsvergleichende  Studien  über 
Islamitische  Rechte,  das  Recht  der  Berbern,  das  Chine- 
sische Recht,  und  das  Recht  auf  Ceylon,"  Berlin  1889; 
"Zur  Urgeschichte  der  Ehe,  Totemismus,  Gruppenehe, 
Mutterrecht"  ("Z.  f.  v.  Rechtsw.,"  Vol.  XII,  pp.  187- 
353).^  Kohler's  ethnological  position  is  more  accurately 
set  forth  in  his  essay  "Recht,  Glaube,  und  Sitte,"  ^  and 
in  Holtzendorff's  "Enzyklopädie"^  for  which  he  prepared 
a  new  edition  in  1904. 

Alb.  Herm.  Post  (d.  1895)  was  a  notable  represent- 
ative of  the  ethnological  school  of  law.  In  a  series  of 
writings  he  investigates  the  original  form  and  appear- 
ance of  law.  His  works  are:  "Das  Naturgesetz  des 
Rechts,"  an  introduction  to  a  philosophy  of  law  on 
the  basis  of  a  modern  empiric  science,  Bremen  1867; 
"Die  Geschlechtsgenossenschaft  der  Urzeit  und  die 
Entstehung  der  Ehe,"  a  contribution  to  a  general  com- 
l)arative  science  of  government  and  law,  Oldenburg 
1875;  "Der  Ursprung  des  Rechts,"  an  introduction  to 
a  general  comparative  science  of  law,  Oldenburg  1876; 
"Die  Anfänge  des  Staats-  und  Rechtslebcns,"  a  contri- 
bution  to  general   comparative   history'   of  government 

*  Köhler,  "Rochtsenzyklopädic,"  ]>.  20,  note  1,  gives  a-  partial 
list  of  Kohler's  works. 

2  In  Grünh.,  Z.,  Vol.  11),  Vienna  1S92,  pp.  5Ü1-G12. 

^  Pp.  14  seq.,  17-20.  See  also  Köhler,  "Zur  Ethnologischen  Juris- 
prudenz, Rezensionsabhandlungen"  ("Z.  f.  v.  Rechtsw.,"  VI,  pp. 
(407-429)  407. 


§47]      ETHNOLOGICAL  JURISPRUDENCE       391 

and  law,  Oldenburg  1878;  "Bausteine  für  eine  Allgemeine 
Rechtswissenschaft  auf  Vergleichende  Ethnologischer 
Basis,"  Vol.  I,  Oldenburg  1880  (see  pp.  1-8  for  the 
comparative  method  in  law);  Vol.  II,  1881;  "Die 
Grundlagen  des  Rechts  und  die  Grundzüge  seiner 
Entwickelungsgeschichte,"  suggestions  for  a  general 
science  of  law  upon  a  sociological  basis,  Oldenburg 
1884;  "Einleitung  in  das  Studium  der  Ethnologischen 
Jurisprudenz,"  Oldenburg  1886;  "Afrikanische  Juris- 
prudenz," ethnological-juridical  contributions  to  the 
science  of  indigenous  law  in  Africa  (two  parts  in  one 
volume),  Oldenburg  and  Leipzig  1887;  "Studien  zur 
I^ntwickelungsgeschichte  des  Familienrechtes,"  a  con- 
tribution to  a  general  comparative  science  of  law  on  an 
ethnological  basis,  Oldenburg  and  Leipzig  1890;  "Über 
die  Aufgaben  einer  Allgemeinen  Rechtswissenschaft," 
Oldenburg  1891. 

In  this  field  B.  W.  Leist  (b.  1819)  has  contributed  the 
following  works:  "Graeco-italische  Rechtsgeschichte," 
Jena  1884;  "Alt-Arisches  Jus  Gentium,"  Jena  1889; 
"Alt-Arisches  Jus  Civile,"  Part  I,  Jena  1892;  Part  II, 
Jena  1896.  He  insisted  that  his  works  were  not  to  be 
considered  as  belonging  to  comparative  law  but  rather 
to  the  history  of  law,  as  the  title  "Arische  Stammrechts- 
geschichte" indicates.^  Nonetheless  he  proceeds  upon 
the  comparative  method.  His  studies  of  the  legal 
conceptions  of  ancient  India,  Greece,  and  Rome,  as 
bearing  upon  the  government,  civilization,  and  science 
of  these  peoples,  have  great  merit;  and  their  conclu- 
sions have  been  largely  utilized  in  the  first  chapters  of 
the  present  work." 

*  "Alt-Arisches  Jus  Gentium,"  pp.  6-11. 

^  There  may  be  added  the  contributions  of  F.  Meili:  "Die  Neuen 
Aufgaben  der  Modernen  Jurisprudenz"  (1892);  and  the  compendium 
entitled,     "Institutionen    der  Vergleichenden    Rechtswissenschaft" 


392  SOCIOLOCUCAI.  PHILOSOPHIES    [Cii.  Vll 

§  48.  The  Reiuslalcnient  of  Kant  and  Ilegel:  v. 
Hartmann.  1:  Neo-Kantianism.  The  neo-Kantians 
represent  the  position  that  the  further  development  ot 
the  work  of  critical  idealism  and  the  independent 
advance  of  systematic  philosophy  will  mutually  further 
and  condition  one  another.^     Hermann  Cohen-  (h.  1842) 

(1898);  ofBernhöfl:  "Die  Inschrift  von  Gortyn"  (Stuttgart  1885); 
together  with  articles  in  the"Z.  f.  v.  Rechtsw.,"andin  the  "Jahrbuch 
der  Intern.  Ver.  für  verg.  R.,"  of  both  of  which  he  is  co-editor;  of 
S.  R.  Steinmetz:  "Ethnologische  Studien  zur  Ersten  Entwickelung 
der  Strafe,"  2  vols.  (Leyden  1894);  "Bearbeitung  des  Fragebogens 
der  Internationalen  W'ivinigung  für  Vergleichende  Rechtswissen- 
schaft und  Volkswirtschaftslehre  (Htrlin  l^O.'i);  of  Henry  Sumner 
Maine:  "Ancient  Law"  (London  ISGI);  "Lectures  on  the  Early 
History  of  Institutions"  (London  1875);  "Dissertations  on  Early 
Law  and  Custom"  (London  1883);  of  Lewis  II.  Morgan:  "Systems 
of  Consanguinity  and  Affinity  of  the  Human  Family"  (Washington 
1871);  of  Friedrich  Boden:  "Mutterrecht  und  Ehe  im  Altnordis- 
chen Recht"  (Berlin  and  Leipzig  1904);  oi Labriola:  "Del  Concetto 
Teonco<Iella  Societä.  Civile"  (Rome  1901);  "Revisione  Critica  delle 
piu  Recenti  Teorie  su  le  Origini  del  Diritto"  (Rome  1901). 

The  "Z.  L  V.  Rechtsw."  (established  1878),  and  the  "Jahrb.  d.  I. 
Ver.  f.  verg.  Rechts,  und  Volksw."  (established  1895),  contain 
numerous  articles  upon  various  aspects  of  comparative  law  by 
Dargun,  Friedrichs,  Max  Schmidt,  and  others.  For  penology  a 
similar  service  is  performed  by  "Die  Strafgesetzgebung  der  Gegen- 
wart in  Rechtsvergleichenikr  Darstellung,"  of  which  the  first  vol- 
ume ap])eared  in  1894,  the  second  in  1899,  and  others  of  which  are 
to  follow. 

The  work  of  ICrnst  Neukami),  "ICntwickelungsgeschichte  des 
Rechts"  (Berlin  1S95),  belongs  in  part  to  this  group,  but  is  distinctive 
by  reason  of  his  advocacy  of  an  evolutionary  trend  in  the  develop- 
ment of  legal  .systems.  The  comparative  study  is  to  afTord  the 
data  from  which  the  discovery  of  the  actual  laws  of  evolution  are 
to  be  derived. 

'  Cohen,  "Kant's  Begründung  der  I'.thik,"  j)r(nuc,  p.  111.  See  also 
Berolzheinier,  "System,"  Vol.  I,  i)p.  128  secj. 

*  To  be  noted  are:  "Kant's  Theorie  der  Erfahrung,"  Berlin  1871. 
"Kant's  Begründung  der  Ethik,"  Berlin  1.S77.  "System  der  Philoso- 
phie,"  Part   1:    "Logik  der  Reinen   ICrkeniitnis,"    Berlin   1902    (pp. 


§  48]  NEO-KANTIANISM  393 

may  be  termed  the  father  of  the  movement;  and  asso- 
ciated with  him  are  Natorp,  Stammler,  Eduard  Bern- 
stein. In  Cohen's  "Kant's  Theorie  der  Erfahrung,"  he 
interprets  Kant's  views  of  purpose  and  idea,  making 
the  idea  of  cause  that  of  purpose.  Previous  to  Kant, 
the  teleological  position  looked  upon  purpose  or  design 
as  itself  a  creative  force;  but  in  Critical  philosophy, 
purpose  "enters  only  when  causes  have  been  exhausted ; 
but  the  analysis  of  causes  should  in  reality  never  cease. 
Purpose  is  the  extension  of  cause."  The  categorical 
imperative  was  developed  under  the  influence  of  this 
conception  of  purpose  ("Zweck"),  or  means  to  an  end. 
"The  noumenon  or  essence  of  freedom  is  contained  in 
the  ethical  principle  that  the  moral  character,  the 
autonomous  nature,  is  such  purpose  existing  for 
its  own  sake,  as  a  final  purpose."  Kant's  princi- 
ple of  freedom  is  to  be  supplemented  in  the  spirit 
of  Kant  by  the  statement:  "I  mean  by  freedom  not 
an  exemption  from  the  law  of  causality,  but  an  ex- 
emption from  any  intermediate  mechanism  or  any 
purposive  limitation." 

"In  the  position  that  ethics  is  the  study  of  duty,  of 
things  as  they  should  be  ('Sollen'),  there  is  an  am- 
biguity that  confuses  the  conception  of  ethics."  For 
science  Cfjnsiders  the  actually  existent,  while  ethics, 
according  to  this  principle,  is  directed  to  that  which 
should  be.  But  appearances  are  deceptive.  Ethics 
must  establish  the  legitimacy  of  the  moral  ideal,  must 
show  the  real  nature  of  moral  effort  as  it  appears  in 
human  experience.  A  moral  ideal  is  necessary  to 
moral  endeavor;  hence  ethics  is  concerned  with  moral 
endeavor. 

172-175);  Part  II:  "Ethik  des  Reinen  Willens,"  Berlin  1904.  For  F. 
Cohen  see  Ueberweg- Heinze,  "Grundriss,"  IV,  pp.  219-221  (on  p.  219 
is  a  list  of  Cohen's  writings). 


394  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vll 

The  formulation  of  moral  laws  is  to  be  derived  from 
the  conception  of  pure  will.  Pure  will  implies  that  the 
moral  law  is  "excluded  as  an  objective  motive."  if 
one  were  to  posit  pleasure  or  pain  as  the  material  condi- 
tion of  the  will,  then  morality  would  not  have  an  a 
priori,  but  an  empirical  foundation,  and  this  would  not 
lead  to  a  moral  law.  "The  form  of  general  legislation 
considered  as  the  sole  condition  of  pure  practical 
reason  is  the  community  of  autonomous  beings  which 
is  ever  thought  of  and  utilized  'as  an  end,  never  merely 
as  a  means.'  The  mere  form  of  legislation  in  accordance 
with  the  general  meaning  of  form  as  law,  is  the  autonomy 
of  the  end ;  the  a  priori  goal  is  found  in  the  community. 
Thus  the  'formal'  a  priori  procedure  finds  so  favorable 
a  reality  that  the  moral  nature  of  the  individual  appears 
to  be  derived  from  that  which  is  common  to  all  moral 
natures.  In  the  last  analysis  the  moral  law  consists 
in  the  conception  of  such  community."  Upon  this 
position  Stammler  develops  his  social  philosophy.  The 
idea  of  moral  law  is  equivalent  to  the  idea  of  humanity. 
"Both  ideas  are  realized  in  the  realization  of  humanity 
in  man."  Cohen  further  sets  forth,  in  the  spirit  of 
Kant,  how  the  moral  law,  with  due  allowance  for  human 
nature,  may  be  practically  and  psychologically  realized.^ 

In  his  "Ethik  des  Reinen  Willens,"  Cohen  elaborates 
and  develops  the  conception  of  humanity.  Man  as  a 
moral  being  is  not  man  in  the  psychological  sense,  not 
man  as  a  self-contained  individual,  but  man  as  the 
conception  of  humanity,  as  a  participator  in  immor- 
tality. The  view  that  the  Slate  is  the  chief  ethical 
expression  of  the  moral  consciousness  suggests  Hegel. 
"The  State  as  a  self-conscious  expression  is  the  unity  of 

'  Cohcfi,  "Kant's  Thcorif  der  lüfaliruiij;,"  ])]).  '2'A\-2\V,i.  "Kant's 
HcjjriindnnK  der  ICthik,"  jjp.  2'.V.i  si-(\.,  jip.  117  scc].,  pp.  154  seq., 
lü.'J,  KiS,  172,  170,  19S,  2Ü1,  273,  275  sccj. 


§48]  NEO-KANTIANISM  395 

subject  and  object  in  the  will."  ^  The  view  that  in  the 
supremacy  of  the  State  the  individual  finds  his  exemplar 
suggests  the  Platonic  position.  Morality  implies  an 
ideal;  there  must  ever  remain  a  gap  between  the  moral 
status  of  man  and  the  moral  idea  in  its  complete  purity. 
Hence  government  and  law  are  neither  dispensable  nor 
replaceable.  "Justice  must  be  maintained  as  a  guide 
to  virtue;  and  its  constant  progress  is  possible  only 
through  the  instrument  of  law  and  government."  The 
State  as  it  actually  is,  is  the  State  of  the  estates  and 
the  ruling  classes.  It  is  not  a  State  based  upon  justice. 
"The  State  as  the  instrument  of  justice  is  guided  solely 
by  moral  consciousness.  The  authority  which  it 
acquires  is  directed  to  this  end.  The  self-consciousness 
of  the  State  is  the  self-consciousness  of  its  members. 
Justice  makes  universal  brotherhood  the  self-appointed 
purpose  of  mankind- 

Natorp's  ^  (b,  1854)  "Sozialpädagogik"  considers  the 
problem  of  the  relations  of  education  and  society.  He 
distinguishes  three  stages  of  conduct  —  instinct,  will 
in  the  narrower  sense,  and  rational  will.  Will  is 
instinct    concentrated;     rational    will    is    "the    highest 

1  "Ethik  des  Reinen  Willens,"  pp.  7,  21,  595;  pp.  76,  231  seq., 
241,  232.  The  State  unites  men  "in  an  ideal  unity  of  all."  "This 
unity  of  a  universality  forms  the  State.  The  moral,  and  conse- 
quently, the  political  conception  of  the  State,  rests  upon  the  unity 
formed  by  this  totality."  "The  true  conception  of  the  State  is 
embodied  and  vitalized  in  the  conception  of  society."  "The 
conception  of  the  State  is  the  ethical  phase  of  the  conception  of  cul- 
ture." "The  State  alone  presents  the  self-consciousness  of  man." 
"Ethik  des  Reinen  Willens,"  pp.  76,  173,  241,  242. 

2  "Ethik  des  Reinen  Willens,"  pp.  568,270-306,  307  seq.,  565,  582 
seq.,  also  603. 

^  For  Natorp  see  Ueberweg-  Heinze,  "Grundriss  der  Geschichte  der 
Philosophie,"  Vol.  IV,  pp.  221  seq.,  where  will  be  found  a  survey 
of  Natorp's  works.  Labriola,  "Revisione  Critica  Delle  piü  Recenti 
Teorie  su  le  Origir.i  del  Diritto,"  Roma  1901,  p.  99. 


390  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

concentration  of  practical  capacity  in  general."  As  is 
true  of  the  individual,  so  is  it  true  of  society  which 
affects  the  individual,  that  "only  by  work  and  by 
discipline  of  the  will,  can  there  be  progress  toward  the 
law  of  reason,"  "progress  from  a  mere  formal  aggregation 
to  a  spiritual  community,"  and  progress  from  external 
rule,  heteronomy,  to  self-rule,  autonomy,  in  Kant's 
sense.  The  social  instruments  for  the  education  of  the 
will  are  the  home  and  the  school;  and  for  adults,  the 
education  afforded  by  the  communal  life.  Practice  and 
study  are  the  means  of  training  the  will.  Ethics, 
aesthetics,  and  religion  also  have  a  share  in  its  education. ^ 
Introductory  to  the  discussion  of  the  methods  of  the 
education  of  the  will,  Natorp  sets  forth  the  foundations 
of  ethics  and  social  philosophy.  The  individual  vir- 
tues are  truth  as  the  virtue  of  reason;  courage  or  moral 
efficiency  as  the  virtue  of  the  will ;  purity  or  modera- 
tion as  the  virtue  of  instinct;  and  lastly  justice  as  "the 
individual  basis  of  social  virtue."^  The  moral  constitu- 
tion of  social  life  must  exhibit  a  complete  parallelism  in 
its  nature  and  operation  to  the  individual  life,  and  must 
equally  comprise  the  three  fundamental  factors  of  human 
conduct.  The  individual  virtues  are  equally  social  vir- 
tues; the  love  of  truth  is  the  dominance  of  conscience 
in  the  social  order,  the  pervasion  of  the  body  social  with 
a  sense  of  truthfulness;  courage  is  the  condition  of  law 
and  order;  temperance  is  the  complete  harmonious 
regulation  of  the  social  instincts,  that  is,  the  organiza- 

»  "Sozialpädagogik,"  pp.  77;  .54-90;  217-388;  99-214. 

2  "Under  justice  as  an  individual  virtue  I  understand  the  aspect 
of  all  virtues  belonging  to  the  individual  that  bear  upon  the  com- 
munity; and  the  essence  of  such  virtue  is  already  completely  con- 
tained in  the  relation  that  what  morality  requires  is  again  required 
in  a  newer  and  larger  sense  by  the  interests  of  the  community.  The 
virtue  thus  transferred  brings  with  it  no  distincti\e  content." 
"Sozialpädogogik,"  j).   1.').'). 


§48]  NEO-KANTIANISM  397 

tion  of  labor  and  the  enjoyment  of  the  fruits  of  labor 
on  a  sound  basis,  "including  a  comprehensive  organiza- 
tion upon  the  basis  of  equality  and  co-operation."  Jus- 
tice is  the  cardinal  social  virtue,  embracing  all  the  rest. 
Social  justice  is  characterized  as  the  widest  application 
of  command  to  render  to  each  his  own;  in  principle  the 
maintenance  of  the  same  law  for  all,  —  a  just  partici- 
pation on  the  part  of  each  "in  education,  in  the  govern- 
ment, and  in  service,  jointly,  and  in  their  inherent  and 
established  relation  to  one  another." 

Social  regulation  requires  as  a  higher  legal  standard 
practical  reason,  and  in  the  form  of  communal  reason. 
The  fundamental  law  of  social  development  is  "the  law 
by  virtue  of  which  the  ideal  relation  of  the  three  factors 
of  the  social  life  become  immutably  one,  valid  and  stable 
for  a  given  period";  and  this  law  becomes  established 
by  the  "adjustment  of  the  idea  to  experience."  "The 
rational  ordering  of  social  life  can  be  realized  only  by 
means  of  social  regulation,  which  represents  the  formal 
will  of  social  life.  In  its  application  this  refers  to  indus- 
trial labor  and  its  technical  organization,  but  the  prog- 
ress of  such  technical  procedure  depends  directly  upon 
the  progress  of  science."  Social  life  requires  the  assump- 
tion that  the  laws  of  nature  "in  the  last  analysis  must 
be  one  and  the  same,  so  far  as  they  bear  upon  the  issues 
of  consciousness,  because  the  root  thereof  lies  in  the 
fundamental  laws  of  consciousness  itself."  Accepting 
Kant's  method  as  an  exemplar,  we  reach  "the  idea  of  a 
universally  valid  functional  connection  among  the  essen- 
tial factors  of  social  life  —  the  connection  resting  upon 
a  community  of  method,  and  designed  ultimately  to 
establish  a  comprehensive  connection  in  the  human  con- 
sciousness between  the  laws  to  which  ideas  are  subject 
and  the  general  law  of  nature.  For  the  two  are  inherently 
related  by  an  original  community  of  origin,  and  like- 


398  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

wise  appear  in  close  connection  in  human  consciousness. 
This  connection  is  established  by  a  systematic  adapta- 
tion of  natural  properties  to  the  purposes  of  social 
technology,  making  economics  a  part  of  governmental 
concern,  and  bringing  both  under  the  direction  of  practical 
reason,  that  is,  of  creative  activity.  Yet  all  this  takes 
place  with  constant  and  conscious  consideration  of  an 
orderly  progress  towards  that  solidarity  which  results 
from  the  supremacy  of  reason,  which  in  turn  determines 
its  direction.  This  consummation  furthers  the  interests 
of  the  individual  and  of  his  associations;  it  places 
in  relation  the  several  interests  requiring  correlation, 
while  also  serving  the  individual  as  a  member  of  the 
community.^ 

Lmong  the  most  important  contributions  to  the  mod- 
ern philosophy  of  law  are  those  of  the  neo-Kantian, 
Rudolf  Stammler  (b.  1850).  Of  his  two  chief  works, 
the  one,  "Wirthschaft  und  Recht,"  furnishes  the  foun- 
dation of  his  social  philosophy,  and  the  other,  "Die  Lehre 
von  dem  Richtigen  Rechte,"  contains  a  searching  examin- 
ation of  the  philosophy  of  law.  Both  are  notable  works ; 
the  latter  particularly  has  failed  to  receive  the  apprecia- 
tion which  it  deserves.^ 

Stammler  was  influenced  in  the  direction  of  neo- 
Kantianism  by  Cohen,  and  Natorp.  In  "Wirthschaft  und 
Recht"  he  develops  asocial  philosophy  as  Kant  might  have 
done,  had  he  undertaken  the  probleni.  Stammler  holds 
the  error  of  former  systems  of  legal  philosophy  to  have 
been  the  accejjtance  of  law  as  the  underlying  principle. 
This  is  quite  as  misleading  as  would  be  the  theoretical 
fornuiiaticjn  of  natural  science  ii]K)n  the  conception  of 
gravity.  "W'irthsc-Jiaft ,"  the  economic  life,  Stammler 
likewise  considers  unsuitable  as  the  point  of  de])arture; 

'  "SozialpädaRoirik,"  vp.  202  21  t,  ISO.  1S2,  182  seq.,  192,  200. 
*  Sec  also  his rucciu  "  Tluuri  •  der  KcclUswissenschafl,"  10 1 1. — lid. 


§48]  NEO-KANTIANISM  399 

it  is  the  social  life  tluit  constitutes  the  underlying  prob- 
lem, and  with  it  we  must  bcg^im 

The  metliod  oi  generalization  upon  historical  data 
proves  to  be  as  inadequate  as  the  comparative  study 
of  law;  and  a  general  legal  science  is  equally  unable  to 
solve  the  fundamental  problem  of  social  philosophy.^ 
The  problem  is  the  determination  and  analysis  of  the 
principles  of  social  life,  in  which,  as  it  is  realized,  law 
forms  but  one  factor,  though  an  important  one.  Instead 
of  studying  individual  social  phenomena  the  attempt 
must  be  made  to  establish  "a  systematic  co-ordination 
of  the  several  phenomena  under  a  comprehensive  prin- 
ciple." In  other  words,  "the  object  of  social  philosophy 
is  the  ordering  of  the  social  life  of  man  as  such";  while 
the  object  of  general  legal  science  is  "the  determination 
of  the  common  content  of  different  legal  systems."  To 
obtain  a  clear  view  of  the  general  conditions  of  social 
science  a  critical  philosophical  survey  is  necessary.  The 
material  conception  of  history  is  the  first  that  seriously 
undertook  to  interpret  the  law-abiding  character  of  the 
history  of  man.  Social  materialism  attempts  to  explain 
the  orderly  development  of  human  society  on  the  basis 
of  economic  phenomena,  yet  does  so  inadequately  be- 
cause it  fails  to  explain  what  "the  economic  relations 
really  are." 

Law,  society,  and  economics.  Rejecting  Spencer's 
analogy  of  sociology  to  the  natural  sciences,  Stammler 
holds  that  the  social  life  of  man  is  far  more  than  a  mere 
physical  gregariousness.  The  significant  difference  be- 
tween the  two  is  the  regulation  of  intercourse  and 
communal  life,  which  is  of  human  (artificial)  origin. 
Social  life  is  thus  an  externally  regulated  living  together 

1  "Wirthschaft  unci  Recht,"  pp.  22,  7  seq.,  8-11,  1,3,  15,  14,  17, 
22-80,  78  seq.,  245-263.  The  materialistic  conception  of  history 
likewise  stands  without  proof  (pp.  624-633). 


400  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vll 

of  men.^  An  external  regulation  of  human  intercourse 
is  one  which  in  spirit  is  quite  independent  of  any  indi- 
vidual motive  to  conform  to  it.  In  this,  social  regulation 
differs  from  ethical  regulation. 

Of  the  several  meanings  attached  to  the  word  social, 
two  must  at  once  be  considered;  first,  social  as  applied 
to  what  is  regulated  from  without,  in  contrast  to  human 
action  considered  as  that  of  an  isolated  individual;  and 
second,  as  regulated  from  without  but  conformably  to 
human  nature,  "thus  contrasting  to  an  unnatural 
standardization  of  communal  life."  iTwo  classes  of 
social  laws  may  be  distinguished,- — -legal  enactments,  and 
the  norms  of  propriety — -custom,  fashion,  usage,- — ■ 
which  Stammler  includes  under  convention.^  The  dis- 
tinction between  these  two  classes  of  norms  does  not 
consist  in  the  fact  that  the  State  makes  the  laws,  and 
that  social  intercourse  gives  rise  to  conventions;  the 
real  distinction  lies  in  "the  spirit  of  the  requirement  in 
which  the  regulation  concerned  was  formed."  The  law 
claims  obedience  as  by  compulsion;  convention  claims 
obedience  by  an  appeal  to  the  consent  of  those  conform- 
ing to  it.^  (Law  and  con\ention  together  constitute 
the  form  or  external  phases  of  social  life  A 

The  expression  of  social  life  is  co-operation  directed 
to  the  satisfaction  of  needs;   such  co-operation  Stammler 

1  "VVirthschaft  und  Recht,"  pp.  83-88,  89  seq.,  93  seq.,  97  seq., 
100,  101  seq.,  104,  108,  111,  257,  259-263;  p.  108:  "Sociallife  is  a 
living  together  of  men  rc^^ulated  by  externally  uniting  norms." 
p.  257:  "There  is  no  other  form  of  social  association  than  that 
established  by  human  rules." 

2  "Wirthschaft  und  Recht,"  pp.  105,  105  seq.,  115-124,' 122, 
125  scfi. 

'The  disluiclion  is  not  an  historical,  but  a  logical  one.  In  a 
formal  sense  law  aims  to  prevail  as  a  coercive  measure,  while  con- 
ventional prescription  has  but  an  hypothetical  validity.  ("Wirth- 
schaft  und  Recht,"  pp.  125-135,  especially  i)p.  129,  132.) 


§48]  NEO-KANTIANISM  401 

calls  social  economics,  and  urges  that  it  should  be  more 
fully  conscious  of  its  obligation  to  supply  a  scientific 
interpretation  of  the  social  life  of  man.^  "A  rule  with- 
out application  is  vain;  the  conception  of  a  social 
economics  without  consideration  of  the  definite  order- 
ing of  communal  life  is  futile."  Yet  a  theoretical  con- 
sideration of  fo^^mal  principles  is  legitimate  if  held 
within  bounds.  \lhe  doctrine  of  natural  law  followed 
a  false  clue,  for  there  is  no  such  law  that  can  be  estab- 
lished a  priori  in  terms  of  its  positive  content.)  |  Only 
such  statutes  may  be  considered  to  be  natural  laws  as 
embody  a  theoretically  just  law  under  empirically 
conditioned  circumstances,  —  "a  natural  law  with 
variable  content.']  ^  On  the  other  hand  the  material 
of  social  life  does  not  afford  an  underlying  principle 
unless  it  is  conceived  in  its  general  aspects.  Social- 
economic  study  must  proceed  on  the  basis  of  definite 
external  regulations.  There  are  no  self-sufficient  prin- 
ciples of  social  economics. 

The  relation  of  law  and  social  economics  is  by  no 
means  adequately  characterized  by  the  statement  that 
the  former  exercises  an  influence  upon  the  latter.  Legal 
regulation  and  social  economics  are  not  related  as 
cause  and  effect;  "for  this  would  imply  that  law  and 
economics  are  independent  and  contrasted,  which  is  not 
the  case;  socially  considered  they  are  two  inherently 
related  expressions  of  one  and  the  same  phenomenon." 
Law  is  not  self-sufficient;  every  legal  regulation  implies 
the  application  to  underlying"  social  operations.  /"Laws 
represent  the  formal  side  of  the  one  comprenensive 
object   of  social   science,    namely,   social   life."  /  "From 

^  "Wirthschaft  und  Recht,"  pp.  136-162,  especially  pp.  137, 
152  seq.,  157,  158. 

2  "Wirthschaft  und  Recht,"  pp.  165,  165-188,  especially  pp.  184, 
185. 


402  SOCIOLOGICAL  PHILOSOPHIES    [Cii.  VII 

the  point  of  view  of  social  science,  there  is  always  pre- 
sented a  definitely  regulated  co-operation  directed  to  the 
satisfaction  of  human  needs.  Accordingly,  social  econ- 
omics is  not  the  effect  of  law  as  a  cause;  but  objectively 
there  is  presented  the  one  object  of  social  consideration, 
namely,  (a  definite  situation  of  a  social-economic 
type."  H  '  What  we  call  an  economic  phenomenon  is 
merely  "a  homogeneous  composite  of  legal  relations." 

The  philosophical  issues:  causality  or  teleology.  Stamm- 
ler's  philosophical  position  is  based  upon  a  monistic 
conception.  /"Monism,  as  applied  to  social  phenomena, 
seeks  a  unitary  basis  of  causal  relations  in  the  solidarity 
of  social  life.)  The  monistic  view  holds  that  the  legal 
order  and  social  economy  are  but  form  and  content  of 
one  and  the  same  phenomenon;  and  that  all  social 
movements,  including  the  directive  causes  of  changes 
in  the  law  as  they  arise  and  become  effective,  are  com- 
prised in  the  one  and  the  same  orderly  principle.  Monism 
explains  all  social  changes  as  "movements  of  the  content 
of  the  social  life."  The  interpretation  of  the  social  life 
requires  the  determination  of  a  regulating  principle; 
there  are  two  available  ones,  ■ — ■  the  principle  of  causality 
and  that  of  purpose.  "It  is  unfortunate  that  modern 
usage  makes  conformity  to  law  and  causality  the  same." 
One's  own  action  or  that  of  another  may  be  considered 
"either  as  causally  produced  fn^ni  witliout  or  as  due  to 
the  agent."  The  latter  case  implies  a  purpose:  "Pur- 
pose is  an  object  to  be  effected;  the  conception  of  an 
object  as  something  to  be  effected  brings  it  within  the 
sphere  of  the  will."  Will  is  not  a  force,  but  a  direction 
of  consciousness.  It  is  not  correct  to  speak  (as  docs 
Ihering)   of  a  psychological   law  of  causality;    for   the 

»"VVirtliscli.ift  uihI  R.-clK,"  pp.  1 SS-219,  220-228,  229-244,  229. 
230,  2:{1.  S.-e  alsj  tlio  .irli(li_:  "Kecht"  in  "Haiuiwörtcrbuch,'' 
Vol.  VI,  pp.  333-337. 


§48]  NEO-KANTIANISM  403 

law  of  purpose  is  not  causal  but  teleological.  (  Teleology 
is  conformity  to  law  in  terms  of  desirej  "A  will  which 
is  exercised  in  the  direction  of  an  ideal,  and  accepts  the 
universally  valid  point  of  view  of  purpose,  is  a  good 
will;  and  its  law  of  action  (as  Hermann  Cohen  aptly 
remarks),  may  be  summarized  in  the  precept:  'Let  your 
actions  be  free.'  " 

Only  such  purpose  is  justified  as  makes  for  the  un- 
conditioned final  goal  of  human  endeavor;  but  there 
arises  the  difficulty  of  the  application  of  purpose  to 
human  endeavor  and  activity,  as  concretely  exemplified. 
Teleology  seems  to  fail  through  "the  irrevocableness  of 
the  law  of  causality."  But  this  contradiction  is  apparent 
only,  and  is  due  to  the  false  conception  of  free  will.  The 
freedom  of  the  will  must  be  understood  in  Kant's  sense; 
it  does  not  imply  an  exemption  from  the  law  of  causal- 
ity, but  only  the  independence  of  the  will  from  "the 
subjective  content  of  the  end  to  be  attained.  It  is  the 
regulation  of  desire ;  it  is  the  thought  of  an  unconditioned 
goal  as  the  standard  for  the  determination  of  purposes; 
it  is  the  idea  of  an  absolute  final  purpose  which  imparts 
to  every  individually  sought  end  a  unity  and  univer- 
sality. It  thus  justifies  the  concretely  chosen  end: 
'Think  as  though  you  were  to  act;  this  is  the  practical 
precept  which  the  idea  of  freedom  inculcates.'"  But 
the  conception  of  the  good  is  derived  from  human 
experience;  and  there  emerges  an  objective  criterion 
of  endeavor  and  conduct  by  the  standard  of  an  universal 
law  of  approved  desire. 

Social  materialism,  if  it  carried  out  its  position  con- 
sistently, would  result  in  a  teleological  principle,  which, 
in  turn,  convincingly  refutes  materialism.  (,For  material- 
ism finds  its  only  philosophical  support  in  the  mistaken 
supposition  that  there  is  no  order  in  the  social  life 
except  the  irrevocable  dominance  of  the  law  of  cause 
and  efifecy 


404  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

The  fundamental  orderliness  of  the  social  life  refers 
only  to  the  form  or  regulation  thereof.  /The  principle 
of  such  social  order  is  a  supreme  unity  or  purpose,  em- 
bracing all  individual  ends  of  the  social  order.  Hence 
the  law  of  such  order  can  be  found  only  in  purj^o&e.)  The 
point  is  to  determine  the  supreme  object  of  social  life, 
to  determine  the  answer  to  the  problem:  To  what 
universal  ends  do  men  use  the  instrument  of  the  social 
order?  The  x^rinciple  of  the  social  order  must  be  one 
that  considers  the  interests  and  purposes  of  those 
affected  by  social  ties,  and  must  be  expressed  with 
reference  to  those  coming  under  its  influence.  /We  thus 
return  to  the  two  types  of  social  regulation :  to  law,  which 
exercises  a  coercion  upon  the  individual,  and  to  con- 
vention, which  rests  upon  the  consent  of  those  conform- 
ing to  it'^  By  its  nature,  law  attributes  to  itself  the 
quality  of  compulsion;  in  the  light  of  history  this  claim 
is  properly  made.  Law,  therefore,  cannot  be  derived 
from  the  will  of  those  subject  to  it.  The  question  arises: 
How  is  the  coercive  character  of  law  to  be  justi- 
fied? Coercive  dispositions,  promulgated  as  law  between 
man  and  man,  may  be  justifiable,  and  thus  become 
"legal  measures  of  force";  or  lack  justification,  and  be- 
come "arbitrary  measures."  What  is  the  basis  of  the 
distinction  ? 

Stammler  does  not  propose  to  answer  this  question 
a  priori.  His  aim  is  to  determine,  from  experience,  in 
what  connection  the  conception  of  law  arises,  and  what 
are  its  essential  criteria  as  differentiated  from  arbitrari- 
ness. The  answer  cannot  be  in  terms  of  any  particular 
content  of  social  regulation,  but  must  be  in  terms  of  the 
formal  definition  of  law.  1  le  finds  "the  desired  criterion 
in  the  determination  of  whether  or  not  the  commands 
have  a  mere  personal  bearing,  and  serve  merely 
to  express  a  ])ersonal  cai)rice."  [  The  o])i)osite  of  arbi- 


§48]  NEO-KANTIANISM  405 

trariness  results  "when  the  promulgator  of  the  com- 
mand is  also  bound  by  it.j  Both  [ruler  and  subjects] 
must  be  bound  by  the  same  command ;  if  such  is  not  the 
case  then  there  is  sheer  arbitrariness.  There  is  no  in- 
violable command,  and  thus  no  true  law."  If  the 
spirit  of  the  proposed  norms  implies  that  they  are  not 
binding  upon  those  invested  with  the  authority  of  estab- 
lishing them,  then  such  law  is  arbitrary;  but  if  their 
spirit  is  such  that  until  these  proposed  regulations  are 
abrogated,  no  action  in  opposition  thereto  is  permissible, 
then  such  law  is  just.  Law  raises  the  presumption  of 
inviolability,  therefore  law  is  "in  spirit,  the  inviolable 
coercive  regulating  of  the  communal  life."  ^ 

The  justification  of  legal  coercion.  Thus  law  is  formally 
distinguished  from  arbitrary  power  as  embodied  in  the 
form  of  laws;  but  the  questions  still  remain:  Why  is 
this  intermediary  betw^een  free  convention  and  arbitrary 
force  necessary?  Why  should  there  be  legal  enforce- 
ment? The  reply  must  consider  mainly  the  under- 
lying principle  in  law  and  not  its  incorporation  in  any 
set  legislation;  the  problem  must  be  considered  as  that 
of  justifying  legal  coercion,  of  justifying  tlie  existence 
of  law  in  general,  and  not  of  specific  legislation,  of 
justifying  precisely  what  the  anarchists  regard  as 
unjustifiable. 

Such  coercion  cannot  be  based  upon  contract  or  the 
consent  of  those  affected  by  it;  for  history  shows  that 
law  demands  the  obedience  of  its  subjects,  without 
reference  to  their  consent  or  to  consideration  of  their 
wishes  or  desires.     To  put  it  briefly,  the  issue  is  "the 

1  "Wirthschaft  und  Recht,"  pp.  263-284,  264,   284-304,  305-345, 
315,  324  seq.,  349-356,  349,  351  seq.,  354,  357-380,  369,  380-394, 
381,  392,  395-448,  449-484,  485-523,  487  seq.,  491,  496,  497  seq 
See   also   article   "Recht"   in    "Handwörterbuch   der  Staatswissen- 
schaften," Vol.  VI,  pp.  327  seq. 


406  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

right  of  law  to  exist,"  ^  its  iustification.  Convention 
TTIcewise  regulates  social  relations  but  does  not  require 
such  justification.  Its  validity  is  conditioned  by  the 
will  of  those  submitting  to  it.  It  says:  Do  thus  and  so 
if  you  please;  but  the  law  demands  unconditional 
obedience. 

^The  necessity  of  legal  coercion  must  be  proven.  But 
necessity  may  be  understood  in  two  senses:  the  causal, 
or  the  teleological^  The  discussion  of  the  question  is 
readily  affected  by  the  philosophical  error  of  conceiving 
necessity  in  the  sense  of  causal  necessity.  In  judging 
the  attempts  to  establish  a  philosophical  basis  for  legal 
coercion,  one  must  distinguish  between  such  as  aim  to 
prove  it  to  be  a  causal  consequence,  and  those  that 
present  it  "as  the  indispensable  means  to  a  necessary 
end."  The  latter  attempt  a  teleological  justification 
of  legal  coercion,  regarding  the  law  either  as  a  means  to 
the  maintenance  of  the  human  race  or  as  a  means  to 
the  interests  of  morality.  The  former  justifications, 
which  Stammler  also  called  the  dynamic,  are  variously 
expressed.  Some  justify  legal  coercion  "by  a  recourse 
to  a  psychological  cause,  to  the  necessity  of  obeying 
certain  commands."  Such  a  social  impulse  ^ — ^  as  sug- 
gested by  the  "^wov  ttoAitikov"  of  Aristotle,  or  the  "appeti- 
tus  socialis"  of  Grotius  —  would  explain  merely  the 
fact  of  socialization  but  not  the  coercive  authority  of 
the  law  in  contrast  to  convention.  Other  dynamic 
theories  urge  that  those  who  issue  social  regulations  are 
impelled  by  natural  causes,  by  irresistible  influences,  to 
invest  their  disi)()sitions  with  the  quality  of  legal  com- 
mands. The  evidence  for  such  a  view  would  not  .bear 
upon  the  principle  of  coercion,  upon  the  coercive  power 
as  such,  but  only  U])on  a  given  concrete  law  of  one  kind 

*  "Das  Recht  des  Rechtes"  is  tlic  hist  (the  fifth)  book  of  the  work, 
(pp.  .'iS.5  se<i.) 


§48]  NEO-KANTIANISM  407 

or  another.  Finally,  one  may  have  recourse  to  the 
empirical  fact  that  legal  enforcement  is  as  old  as  any 
record  of  human  culture.  But  tliis  fact  does  not  j:)ro- 
vide  a  scientific  foundation  of  legal  coercion;  and  the 
question  of  justification  of  such  coercion  in  the  future — 
which  is  what  the  anarchists   deny — remains  unsolved. ^ 

The  teleological  arguments  are  likewise  various. 
Hobbes  justifies  coercion  on  the  ground  that  without  it 
there  would  be  the  danger  of  war  of  all  against  all. 
This  is  hardly  in  point;  for  the  question  at  issue  is  net 
the  justification  of  social  regulation  in  general,  but  of 
the  special  quality  of  legal  coercion  as  part  of  social 
regulation.  The  second  t>'pe  of  teleological  argument 
makes  the  law  the  necessary  condition  of  morality; 
here  again  the  legal  order  is  incorrectly  regarded  as 
equivalent  to  the  social  order  in  general. 

Convention  makes  its  appeal  to  the  individual.  Those 
who  conform  to  it,  do  so  of  their  own  accord.  If  social 
life  were  organized  exclusively  upon  the  basis  of  con-^ 
vention,  it  would  affect  only  "certain  men  with  certain 
qualifications."  Hence  convention  docs  not  account 
for  the  entire  range  of  social  life.  "Convention  alone 
cannot  produce  an  orderly  social  life  or  even  approxi- 
mate it."  V^egal  coercion  alone  has  within  it  the  capacity 
to  regulate  all  phases  of  social  life;  and  therein  lies 
its  justification — "as  a  necessary  means  to  the  es- 
tablishment of  the  principle  of  order  in  the  social  life  of 
man."  ^f 

1  "Wirthschaft  und  Recht,"  pp.  524-533,  533-541,  541-547. 
See  also  article  "Recht"  in  "Handwörterbuch,"  Vol.  VI,  pp.  330- 
S33  (on  p.  333:  "Kritische,"  foundation  of  the  coercive  power  of 
the  law). 

2  "Wirthschaft  und  Recht,"  pp.  547-551,  551-571,  553,  554,  557. 
See  also  Stammler,  "Die  Theorie  des  Anarchismus,"  p.  43:  "I  base 
the  legality  of  law  in  its  formal  phase  upon  the  consideration  thi  d 


408  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vll 


Thus  is  legal  coercion  established;  but  this  applies 
only  to  the  justification  of  law  in  general.  Ht  deter- 
mines nothing  as  to  the  content  which  the  law  is  to 
expressy  Inasmuch  as  the  spirit  of  the  legal  order  con- 
sists in  the  attainment  of  a  certain  form  of  co-operation 
and  mutual  intercourse  of  men,  the  justification  of  its 
positive  legal  construction  will  be  determined  by  "its 
success  in  finding  in  its  material  embodiment  the  right 
means  to  the  right  end  of  the  social  life  of  man."  Such 
an  objective  end  of  social  life  must  be  a  universal  one. 
The  requirement  of  universal  validity  as  the  absolute 
end  cannot  be  met  by  any  particular  and  more  limited 
purpose.  The  ultimate  goal  of  social  existence  turns 
upon  "a  formal  idea  which  in  unrestricted  unity  of 
purpose  directs  all  subsidiary  purposes;  and  from  it 
alone  every  empirical  variety  of  social  purpose  must 
derive  its  warrant."  ^  (Good  will  is  the  unconditional 
law  of  human  intercourse  applied  to  the  social  life;  it 
results  in  "a  community  of  free  agents,  and  such  com- 
munity is  the  unconditional  final  purpose  of  social 
life.")  Legal  enactments  imposed  from  without  must 
concur  with  the  autonomous  law  governing  the  desires 
of  the  subjects  as  expressed  from  within  —  a  conclusion 
that  reflects  the  social  philosophy  of  Rousseau,^  Kant, 

the  legal  organization  is  the  only  one  open  to  all  men  without  dis- 
tinction of  peculiar  and  accidental  qualities. 

"Organization  means  to  unite  under  regulation.  Such  regulation 
of  human  intercourse  is  a  means  to  an  end,  an  instrument  in  the 
service  of  the  pursuit  of  the  ultimate  purpose,  the  maximum  perfec- 
tion of  man.  Accordingly,  only  such  regulation  of  human  collective 
life  can  lay  claim  to  a  universal  recognitiofi  wiiich  enil)races  compre- 
hensively all  men  without  regard  to  their  subjective  and  indiviilual 
peculiarilics,  and  t!iat> alone  is  rei)resented  by  the  law.  Yet  in  a 
bad  law  the  legal  coeiVion,  considered  in  itself,  appears  to  be  well 
justified." 

'  "WMrthschaft  und  Recht,"  pp.  572  seq.,  575. 

'  !■  or  this  and  (lie  "inconseciuence"  of  Rousseau  see  Stammler, 
"W'irlliM  haft    und    Kcdil,"  i,|).  (lOf)  sc(i.      See  also  above,   §§29,  33 


§48]  NEO-KANTIANISM  409 

and  Fichte.  "The  community  of  free  agents,  in  the 
sense  ascribed  to  the  phrase,  is  admittedly  merely  an 
ideal,  yet  it  forms  the  guide  to  experience."  It  is  the 
regulative  principle  for  the  objective  justification  of 
social  coercion.  ^ 

Stammler  is  an  opponent  of  social  hedonism.  He 
reaches  a  general  interpretation  of  social  ideals  ^  by  a 
different  route.  /The  thesis  maintained,  is  expressed  in 
the  statement  that  "the  social  ideal  is  a  unitary  formal 
idea  which  is  to  serve  as  the  standard  and  guide  for  all 
empirical  efforts  in  social  life,  by  conformity  to  which 
any  concrete  desire,  involving  the  retention  or  altera- 
tion of  any  legal  enactment,  is  to  be  legitimately  and 
objectively  justified;  but  which  itself  never  enters,  and 
never  can  enter,  as  an  empirical  datum  of  social  life  as 
experienced. y 

Regulative  principles:  justice  and  morality.  The 
next  question  concerns  "the  practical  application  of 
social  ideals  to  existing  society."  In  every  social- 
economic  order  there  are  attempts  to  re-enforce  or 
modify  the  existing  situation.  In  judging  such  efforts, 
"a  clear  distinction  must  be  drawn  between  the  material 
phases  of  social  purposes  and  the  formal  principle  direct- 
ing them."  Three  questions  arise:  What  is  the  origin 
of  social  effort?  When  is  it  objectively  justified?  and. 
In  what  measures  are  the  right  means  for  the  improve- 
ment of  social  conditions  to  be  found?  Social  struggle 
and  endeavor  appear  in  connection  with  situations 
which  develop  under  uniform  conditions  and  affect 
collective  interests.  (Such  social  efforts  are  justified  as 
accord  with  the  spirit  of  the  social  ideal,  which  is  the 
spirit  of  a  community  of  free  agentsj    The  right  means 

»  "Wirthschaft  und  Recht,"  pp.  576,  5S4-58.S,  576-584,  588- 
613.  See  also  article  "Recht"  in  "Handwörterbuch,"  Vol.  VI, 
pp.  340  seq. 


410  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VU 

for  the  impiovement  of  social  conditions  "require  such 
regulation  of  the  social  life  as  would  bring  the  situations 
in  which  men  live  in  accord  with  the  ideal  of  a  com- 
munity of  free  agents." 

The  socialists  of  the  type  of  Marx  regard  the  communal 
distribution  of  the  means  of  subsistence  as  a  social 
necessity;  but  whether  they  mean  a  causal  or  a  teleo- 
logical  necessity  is  not  indicated.  If  it  be  causal 
it  will  in  due  course  make  its  appearance;  if  it  be  teleo- 
logical,  then,  according  to  the  above  principles,  it  is 
warranted  only  if  it  proves  to  be  the  right  means,  under 
actual  existing  conditions,  to  serve  the  social  ideals  of 
a  community  of  free  agents.  A  convincing  proof  that 
communism  meets  this  requirement  is  as  yet  lacking. 

Stammler  emphasizes  the  comprehensiveness  of  the 
social  ideal  which  his  philosophy  advocates.  Social 
philosophy  must  "establish  a  fundamental  regulative 
social  principle  in  accordance  with  which  minor  concrete 
principles  may  be  determined  and  applied."  The  social 
problem  can  never  be  solved,  "for  that  would  imply  a 
realization  of  the  social  ideal."  By  its  nature  this  ideal 
can  never  be  absolutely  attained  but  only  approximately 
I  realized.  (Xhe  social  philosopher  will  have  solved  his 
I  problem  when  he  shall  have  furniFhed  a  social  ideaJ 
which  will  guide  the  statesman  in  his  political  course. ^^ 

The  problem  of  the  philosophy  of  "natural  law" 
was  to  establish  a  natural  law,  that  is,  an  absolute  jusc 
model  law,  the  law  par  excellence.  But  the  evidence  of 
history  makes  against  any  such  assumption.  Stammler 
reinstated  this  fundamental  problem  of  natural  law, 
while  yet  avoiding  the  error  of  the  older  posftion. 
Stammler's  ])n)bl(ni  in  "Die  Lehre  von  dem  Richtigen 
Rechte"   is  not  the  ^l"<'"-mjnjiiVMi   of  ;ip   j^lic;r»lii^<>  law. 


'  "Wiriliscliiifl  und  Kcelil,"  pp.  .'")S.S  sc'(i.,  OKi,  6i;>-ti2},   Gi4,   015. 

OK),  (iiT,  o'Jl  o:'.:;,  02'.»,  o;!i  (iio. 


§481  NEO-I<j\NTIANISM  411 

but  of  the  absolute  idea  of  law,.  After  specifically  not- 
ing that  he  is  not  an  adherent  of  "natural  law,"  he 
explains  that  his  purjiose  "is  not  to  supply  an  ideal 
code,  but  to  consider  the  law  as  it  has  historically 
developed;  not  to  determine  the  origin  of  law  as  though 
this  could  be  evolved  out  of  one's  inner  consciousness, 
but  to  subject  every  law  within  the  range  of  experience 
to  the  test  of  investigation.  The  question  of  the  specific 
mode  of  origin  of  law  is  not  pertinent."  Stammler's 
study  of  the  justice  inherent  in  law  becomes  a  mode  of 
procedure  which,  by  "maintaining  a  self-consistency," 
prepares  the  way  for  the  determination  of  the  nature 
of  a  just  law ;( the  justness  is  that  quality  of  a  law, 
"which  in  a  particular  relation  acmrds  with  the  funda- 
mental idea  of  law  in  general.'!  The  science  that 
attempts  such  formulation  is  a  formal  one;  that  is, 
"it  is  a  study,  the  results  of  which  set  the  conditions  for 
other  knowledge." 

What  is  the  relation  of  constituted  positive  law  to 
the  "just  law"?  Positive  law  ever  intends  to  be 
just  or  right  but  is  not  always  so.  In  its  tendency 
positive  law  "is  a  coercive  effort  towards  justice."  (But 
there  are  unjust  laws;  there  are  even  "consciously 
recognized  unjust  laws,"  that  is,  legal  tolerance  of  rela- 
tions or  affairs  that  stand  in  contradiction  to  the  idea 


of  justice. M 
In    legal 


transactions  and  decisions  there  occur  a 
series  of  expressions  defining  the  just  law,  specifying 
the  nature  of  the  quality  of  justice.  Among  the  Romans 
there  are  the  terms  "bonum  et  aequum,"  "bona  fides," 
"aequitas,"  "jus  naturale"  or  "naturalis  ratio,"  "boni 
mores"  or  "mos,"  "benevolentia,"  "humanitas,"  "pu- 
dor,"  "pietas"  or  "officium  pietatis,"  "justa  causa," 
"arbitrium  boni  viri,"  "justitia."      In  the  legal  language 

^  [See  below.] 


412  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  Vil 

of  today,  we  have  such  terms  as  "good  faith"  in  the 
performance  of  financial  obHgations,  avoidance  of  "abuse 
of  power"  (in  the  family  law  of  the  BGB),  "cogent 
ground"  for  the  dissolution  of  a  legal  relation,  "intelligent 
appreciation  of  the  facts  of  the  case"  in  the  avoidance 
of  declarations  of  intention,  while  the  designation  *  good 
faith"  expresses  a  legitimate  alteration  of  an  obligation 
which,  as  it  is,  is  a  binding  obligation;  the  term  "equity 
or  fair  appraisal"  is  applied  when  the  point  at  issue  is  to 
find  the  limits  of  a  given  cause  which  can  only  be  deter- 
mined by  equity.^ 

The  content  of  just  law  cannot  be  derived  from  ethics. 
Moral  teachings  are  directed  to  improve  the  disposition; 
the  legal  order  is  directed  to  the  regulation  of  conduct. 
Yet  this  contrast  is  not  decisive.  It  may  be  said  that 
in  regard  to  their  material,  the  justice  of  law  and  morality 
bear  upon  the  same  domain;  yet  their  problems  and 
methods  are  different.  This  difference,  however,  is  not 
an  absolute  one,  for  law,  as  well  as  morality,  "is  directed 
to  what  is  right,  and  to  influencing  human  desire,  and 
thus  must  be  subject  to  the  same  regulative  principle." 
The  moral  law  is  based  upon  that  conception  of  humanity 
whereby  man  is  to  be  regarded  as  a  rational  being,  as 
ever  his  own  final  purpose.  The  term  moral  has  four 
meanings:  first,  as  equivalent  to  all  right  desires  of 
man  in  general,  whether  based  on  inclination  or  conduct, 
and  in  this  sense  the  social  question  may  be  termed  a 
moral  one;  secondly,  as  equivalent  to  moral  in  the  sense 
of  pure  inclination,  the  "ethos";  thirdly,  as  equivalent 
to  the  norm  of  conduct  thus  objectified,  representing  the 
rule  of  justice  —  such  a  rule,  for  example,  as  that  gifts 
expressing  a  recognition  of  a  moral  duty  may  not  be 
recalled;     fourlliK,   as  e(|ui\alent   to   the   right  conduct 

'"Die  Lehre  von  (iem  Riclili^en  Keclite,"  p\).  r5S-44,  especially 
pp.  40  secj. 


§  48]  NEO-KANTIANISM  413 

in  matters  of  sex;  in  this  sense  the  term  "offense against 
moraUty"  is  used.  That  the  formulation  of  the  just 
principle  of  law  has  its  own  problems  is  made  clear  by 
the  fact  that  agitation  for  the  correct  regulation  of 
social  life  is  always  necessary,  however  much  the  moral 
condition  of  men  may  improve.  Moral  relations  cannot 
be  maintained  wholly  by  mutually  accepted  regulations 
among  men.  Political  questions  as  such  do  not  belong 
directly  to  the  moral  law  but  to  the  law  of  justice.  The 
moral  law  has  likewise  its  own  problems,  which  are 
directed  to  the  inner  life.  The  idea  of  perfection  in 
Christian  ethics  refers  to  the  mental  attitude.^  But 
the  distinction  between  the  law  of  justice  and  morality 
is  only  one  of  direction  of  approach;  their  purposes 
must  converge.  The  law  of  justice  must  be  supple- 
mented by  the  law  of  morality;  and  the  law  of  morality, 
in  order  to  be  realized,  requires  the  law  of  justice. 
"Justice  without  love  is  vain,  and  pity  without  just  rule 
lacks  discernment."  ^ 

Stammler  proceeds  to  a  critical  examination  of  "natural 
law,"  the  existence  of  which  he  denies.'  Rousseau  first 
made  clear  the  detachment  of  natural  law  from  human 
nature.  There  are  no  innate  human  rights;  there  is, 
however,  a  "limit  to  the  power  of  tyranny,  to  the 
exercise  of  control  by  a  legal  sovereign."  Yet  this  can- 
not be  deduced  from  human  nature,  "but  only  from  the 
idea  of  a  justly  ordered  life.  What  may  be  established 
is  not  natural  law,  but  only  principles  involved  in  the 

i"Die  Lehre  von  dem  Richtigen  Rechte,"  pp.  12,  93-121,  13-15, 
8,  19-168,  21-27,  27-32,  26S-270.  Article  "Recht"  in  "Handwörter- 
buch," Vol.  VI,  pp.  337  seq.  See  also  Berolzheimer,  "Die  Entgel- 
tung im  Strafrechte,"  p.  165,  note  2. 

2  "Die  Lehre  von  dem  Richtigen  Rechte,"  pp.  51,  52-57,  60, 
63  seq.,  70-75,  72,  73,  74,  76-83,  80  seq.,  84-92,  85,  87,  90. 

'  §  3,  "Richtiges  Recht  und  Naturrecht,"  pp.  93-121. 


(. 


414  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

nature  of  law."  ^  The  object  is  to  find  a  generally  valid 
formal  method  by  means  of  which  the  underlying  content 
of  law,  though  subject  to  a  constant  change,  may  be 
tested  by  the  criterion  of  material  justice.  Mercy 
should  be  exercised  only  upon  the  basis  of  an  inner 
justification  and  in  the  interests  of  material  justice,  or 
by  reason  of  uncertainty,  or  to  rectify  the  positive  law, 
or  in  consideration  of  the  consequences  of  applying  the 
law.  Mercy  then  becomes  "the  exercise  of  the  law  of 
justice  without  coercion,  merely  upon  the  basis  of 
moral  duty."  But  to  thus  exercise  mercy  presupposes 
the  law  of  justice  and  the  power  of  the  moral  will  ade- 
quate to  carry  out  what  is  recognized  to  be  just.  So 
the  first  requirement  is  to  determine  how  the  law  of 
justice  shall  proceed.  It  must  not  be  the  expression  of 
a  natural  sense  of  legal  justice  based  on  judicial  decision; 
nor  the  legal  consciousness  of  the  folk-spirit;  nor  of 
popular  sentiment,  which  may  be  right  in  intent  but 
uncritical  in  its  application;  nor  of  the  morality  of 
special  classes;  nor  of  the  personal  judgment  of  the 
judge.  Every  legal  regulation  relates  necessarily  to 
an  end  to  be  effected,  to  a  purpose;  and  the  problem 
becomes  that  of  finding  the  regulative  principle  of 
purpose:  "to  establish  a  generally  valid  method  that 
enables  one  to  divide  the  content  of  contemplated 
purposes  into  two  classes,  those  of  just  and  of  unjust 
content."  The  principle  to  be  applied  to  the  purposes 
that  determine  conduct  is  not  that  of  freedom  and 
equality;     for  equality   before   the   law   implies   merely 

'  "Die  Leliic  von  dem  Richtigen  Rechte,"  pp.  93-98,  97  seq. 
Natural  law  incorrectly  opposes  positive  law  by  the  assumption  of 
an  a  priori  natural  law.  But  all  law  arises  from  experience.  The 
{Jifferencf  is  based  merely  upon  (lie  mode  of  considering  law;  law  is 
considered  eilher  as  granted  or  is  made  jiart  of  a  teleological  series. 
(pp.  99-l(j;j,  117.) 


§4S]  NEO-KANTIANISM  415 

the  like  treatment  of  one  and  all;  nor  is  this  principle 
that  of  welfare  and  happiness;  but  the  true  principle 
of  the  law  of  justice  is  the  social  ideal  of  the  community 
of  free  agents.  "The  content  of  a  norm  of  conduct  is 
just  when  it  conforms  in  a  particular  situation  to  the 
social  ideal  attitude." 

Stammler  attempts  to  determine  the  just  law  by 
developing  the  underlying  principles.  This  cannot  be 
done  by  "casual  historical  observation,"  nor  empirically; 
the  social  ideal  determines  it  and  demands  that  the 
individual  shall  not  be  coerced  in  his  legal  relations  to 
forego  his  recognized  interests,  and  yet  that  each  indi- 
vidual give  evidence  of  his  sense  of  community  with 
his  fellows.  "While  the  one  demand  is  directed  to 
the  consideration  of  the  individual  in  his  own  right 
action,  the  other  leads  to  the  consideration  of  the  social 
community  and  to  participation  in  its  affairs.  Every 
one  is  called  upon  to  bear  his  own  burden;  yet  this 
does  not  contradict  the  injunction,  that  he  shall  bear 
the  burden  of  another."  From  this  there  follow  four 
principles  of  the  law  of  justice.  The  two  principles  of 
respect  are:  "One's  wishes  must  not  arbitrarily  inter- 
fere with  the  will  of  another,"  and,  "Every  legal  demand 
can  exist  only  in  so  far  as  he  who  is  obliged  remains 
one's  equal."  The  two  principles  of  participation  are: 
"No  one  under  legal  obligation  shall  be  arbitrarily  ex- 
cluded from  common  advantages,"  and  "every  legally 
assigned  power  is  exclusive  only  In  so  far  as  the  one 
excluded  may  still  remain  one's  equal."  These  prin- 
ciples do  not  imply  that  by  their  means  legal  rules  may 
be  directly  established;  they  merely  set  limitations. 
The  historical  development  of  law  should  fall  within 
the  limits  set  by  these  principles.  In  so  far  as  it  does 
so,  it  makes  for  a  just  law.  So  the  material  of  justice 
is  the  law  as  history  reveals  it,  the  positive  law  in  its 


416  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

transformations;  but  the  form  is  the  unity  of  the 
permanent  element.  The  form  conditions  the  content 
in  the  logical,  not  in  the  causal  sense. 

The  extent  to  which  the  relations  of  life  may  be  regu- 
lated through  usage  and  custom,  and  not  through  legal 
force,  is  determined  by  the  legal  order  itself.  Regulation 
through  mere  custom  or  usage  is  legitimate  so  long  as 
the  conventional  regulation  of  certain  relations  accords 
with  the  principles  of  the  law  of  justice.  The  teachings 
of  the  theory  of  justice  do  not  coincide  with  the  social- 
ethical  tendency  in  economics;  for  the  latter  affects 
directly  the  material  of  the  social  life,  while  the  former 
bears  upon  the  content  of  justice,  and  affects  economics 
only  through  it.^ 

Applications:  the  missiofi  of  the  law.  Stammler  next 
considers  the  means  of  establishing  the  law  of  justice. 
The  tw^o  possible  extremes  would  be  either  that  the  legis- 
lator shall  himself  determine  the  regulation,  or  that  the 
legislator  leave  it  to  the  individual  "voluntarily  to  make 
his  contributions  to  the  maintenance  and  development 
of  the  social  life."  The  extent  to  which  the  central 
regulation  shall  control,  and  how  far  the  members  of 
the  community  may  set  their  own  rules,  cannot  be  laid 
down  in  general  principles.  Limitations  can  be  set  only 
in  concrete  cases,  but  e\'er  with  reference  to  the  desired 
end  of  establishing  a  just  law.- 

iPp.  11(5-121,  122-187,  137-141,  142-145,  146-168,  171-187. 
187-191,  191-195,  196-200,  201-204,  204-208,  208-210,  211-213, 
213-215,  216-234,  234-239,  239-244,  245-275. 

^  Pp.  245-252.  Slammlcr  places  as  the  hoading  of  this  section 
"Kinhcitswirtschaft  tind  Freie  Beiträge"  ("Individual  Economy  and 
Free  Contributions").  I  do  not  find  this  simile  ■well  chosen  nor  per- 
tinent to  the  content.  It  reflects  Slammler's  deductive  mode  of 
treatment.  The  history  of  man  is  a  continuous  process  of  emanci- 
pation. The  stage  of  civilization  attained  at  any  given  moment 
furnishes  the  basis  for  the  si)here  of  free  action  of  the  indi\idual  as 


§48]  NEO-KANTIANISM  417 

Just  law  is  a  law  that  tends  to  "determine  in  advance 
a  justice  that  is  generally  applicable  to  future  dis- 
putes," while  merciful  law  leaves  it  "to  the  parties  — 
the  counsellor,  the  judge,"  to  determine  the  proper  so- 
lution in  the  individual  case.^  A  further  contrast  is 
that  of  actual  and  formal  law.  The  latter  is  established 
law,  which,  in  order  to  strengthen  the  legal  security, 
may  depart  in  its  application  from  the  principles  of 
justice.  Such  are  the  provisions  relating  to  the  public 
credit  attaching  to  the  land  registry  book;  the  statute 
of  limitations;  the  rules  of  civil  procedure.^  Con- 
sciously unjust  law  Stammler  calls  the  toleration  by 
the  law  of  unjustifiable  conditions  and  actions.  Analogy 
to  supply  omissions  in  the  law  has  only  a  subsidiary 
pi ace. ^ 

While  the  principles  of  justice  should  lead  deductively 
to  its  determination,  "it  is  the  problem  of  the  ideal  of  the 
law  of  justice  to  make  concessions"  to  the  "status  quo" 
by  the  consideration  of  "legal  conditions  set  by  the 
situation."     The  ideal  of  the  law  of  justice  must,  how- 

against  the  community.  The  important  point  is  not  how  much  the 
central  authority  and  how  much  the  individual  contributes  to 
social  regulation,  but  how  heavily  the  central  authority  bears  upon 
the  individual,  or  how  much  free  play  it  leaves  for  the  expression 
of  individuality. 

1  Pp.  2.52-261.  Stammler  refers  to  the  model  set  by  Aristotle: 
"StKttioo-w7/-e7rtetKeta".  The  German  translation  into  "gelind" 
(lenient)  is  taken  from  Luther. 

^  Pp.  262-268.  This  point  of  Stammler's  is  to  be  commended. 
The  conflict  with  the  conception  of  law  which  may  arise  from  the 
formal  nature  of  law  was  formerly  not  sufficiently  considered  and 
elucidated  by  legal  philosophy.  See  Berolzheimer,  "Die  Entgelturg 
im  Strafrechte,"  pp.  189-191,  270-.327.  The  formal  prescription, 
and  the  proof,  as  well  as  the  burden  of  proof  or  presumption,  give 
rise  to  positive  law  which  in  an  individual  case  may  seem  unjust. 

^  "Die  Lehre  von  dem  Richtigen  Rechte,"  pp.  268-271.  See  also 
Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  pp.  165,  168,  495. 


418  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

ever,  not  be  itself  empirically  conditioned,  but  must  be 
of  general  validity.  It  must  accordingly  effect  "a 
correlation  of  the  empirical  material  which  shall  be 
independent  of  the  details  thereof."  Consequently  "the 
ideal  of  justice"  in  its  "formula  and  function"  must  be 
derived  from  the  idea  of  just  law. 

"The  model  considered  by  the  law  of  justice  is  that 
of  a  select  community  —  the  principle  of  selection  itself 
determined  by  the  just  law";  such  community  is 
naturally  not  a  reality  but  merely  an  aid  to  constructive 
thought.^  One  must  put  the  hypothetical  question: 
With  whom  shall  I  in  thought  ally  myself  in  a  select 
community?  or,  Whom  shall  I  consider  to  be  my  neigh- 
bor? The  reply  varies  and  includes  in  one  relation 
narrower,  and  in  another,  wider  groups  of  persons  of 
affiliated  interests. 

Under  the  phrase  "Types  of  Performance,"  Stammler 
sets  forth  that  the  idea  of  a  select  community  involves 
that  every  participant  may  demand  of  every  other, 
consideration  and  participation.  The  principles  of 
consideration  and  participation  are  thus  maintained  in 
the  legal  relations  of  a  number  of  persons  bound  together 
by  a  common  legal  tie,  and  likewise  in  the  relation  of 
such  persons  to  third  persons.  In  its  legal  aspect  the 
value  of  performance  rendered  must  be  determined; 
its  value  must  be  objectively  stated.  The  formula 
proposed  by  Marx  will  not  hold;  for  value  "sets  an 
inde]jcndcnt  standard  apart  from  legal  control."  Value 
can  be  rightly  determined  only  in  accord  with  the 
principles  of  justice,  as  based  on  objective  facts.  When 
thus  considered  the  law  of  justice  will  be  available  for 
practice. 

'"Die  Ix-hro  von  clem  Richlißcn  Rechte,"  pp.  271-27r),  276-280, 
2S1  2S4,  2S.'')-291,  21)2-298,  311-598.  Stammler's  comments  upon 
usury  should  be  noted. 


§  48]  NEO-KANTIANISM  419 

The  part  of  Stammler's  work  that  considers  the 
practice  of  the  principles  of  justice  makes  a  first  attempt 
to  indicate  how  it  may  be  applied.  The  subject  is 
divided  as  follows:  (1)  The  just  administration  of  legal 
relations,  including  performance  in  good  faith,  the 
avoidance  of  abuse  of  family  rights,  performance  under 
the  formula  "if  it  can  be  done,"  performance  according 
to  an  equitable  standard.  (2)  The  limits  of  the  freedom 
of  contract.  The  theory  of  justice  prescribes  the  chief 
limitations.  (3)  The  duties  of  justice,  that  is,  the  legal 
duties  obligatory  upon  the  parties  concerned,  arising 
directly  from  the  idea  of  the  just  law;^  thus,  per- 
formances in  compliance  with  moral  duty  or  the  rules 
of  social  propriety,  equitable  compensation,  intentional 
injuries  contrary  to  good  morals,  acceptance  of  per- 
formances offensive  to  good  morals.  (4)  The  establish- 
ment of  a  just  content  of  acts  in  the  law.  Under  this 
head  are  considered  the  real  will  of  the  parties,  a  reason- 
able understanding  of  the  facts,  interpretation  according 
to  good  faith  supplementing  incomplete  contracts. 
(5)  The  termination  of  legal  relations.  Legal  relations 
that  are  permanent,  like  marriage,  or  entered  into  for 
long  periods,  may  under  certain  conditions  be  dis- 
solved. The  principles  of  the  law  of  justice  furnish 
directions  for  the  legitimate  circumstances. 

The  conclusion  of  the  book  is  devoted  to  the  mission 
of  the  theory  of  justice.  The  principles  of  justice  are 
necessary  "for  uniformity  in  every  social  consideration." 
It  is  only  through  the  principles  of  justice  that  sociology 
attains  uniformity .'•^  It  alone  makes  possible  an  insight 
into  the  regulative  i^rinciple  of  social  history,  which  is 

^  "The  question  is  ...  to  what  actions  and  restraint  men  are 
in  justice  bound  without  the  necessity  of  a  legal  enactment  forcibly 
demanding  such  compliance"  (p.  247). 

2  Pp.  447-496,  497-553,  554-598,  601-627. 


420  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

not  causal,  but  teleological.  The  purpose  of  evolution 
is  set  by  the  conception  of  the  community  as  a  real  and 
just  co-operation,  and  can  be  realized  only  through  the 
standards  of  justice.^  This  law  forms  the  fundamental 
determining  condition  for  social  economics,  and  forms 
"one  of  the  necessary  stages"  to  a  true  philosophy.^ 

A  critical  view.  Stammler's  importance  as  a  legal 
philosopher  is  not  adequately  recognized.  Most  writers 
decline  to  accept  his  theory  of  legal  coercion  or  dispose 
of  it  with  brief  criticism.  But  such  an  attitude  over- 
looks the  importance  of  the  correct  statement  of  a 
problem,  in  which  consists  Stammler's  special  claim  to 
consideration.  He  is  the  first  since  Rousseau  seriously 
to  consider  the  problem  of  the  coercive  p>ower  of  the  law. 
He  may  have  been  led  to  this  by  the  position  of  anarch- 
ism, which  denies  the  justification  of  coercion  altogether, 
as  well  as  by  his  radical  modification  of  the  material 
conception  of  history.  Yet  this  is  not  im])ortant;  every 
student  is  influenced  by  others,  and  frequently  by  those 
of  opposite  opinion.  Stammler  has  clearly  conceived 
and  formulated  the  specific  problems  of  the  law.  Even 
such  luminaries  as  Aristotle  and  Grotius  have  so  con- 
sidered the  problems  of  government  and  law  that  their 
solutions  merely  account  for  —  and  this  imperfectly  — 
the  socialization  of  man,  and  do  not  analyze  the  nature 
of  the  legal  association  which  the  law  establishes. 
Rousseau  as  well  as  Kant  and  Fichte  considered  the 
nature  of  law  and  government,  but  not  from  the  in- 
herently legal  aspect  of  the  problem,  but  from  that  of 
its  counterpart,  freedom.  Their  ])roblem  was  not,  How 
is  legal  coercion  to  be  accounted  for?  but.  What  elements 

'  "Die  (".c^cllschal'lliclic  Kiitwickclungslehrc."  ("Die  Lehre  von 
rl.in  Ki(  litigcn  Rechte,"  |)p.  (107-620.) 

■'^  "( )rihos()[)hie."  ("Die  1-ehre  von  dem  richtigen  Rechte," 
pp.  021-027,620.) 


§48]  NEO-KANTIANISM  421 

of  freedom  must  be  conserved  by  the  law  in  order  that 
the  law  shall  be  justified?  Stammler,  with  a  subtle 
logic,  analyzes  the  nature  of  legal  coercion  in  itself, 
and  independently  of  any  particular  form  or  content  of 
the  law.  His  solution  is  as  follows:  The  coercive  power 
of  the  law  is  justified  by  its  necessity  to  the  social  life. 
The  answer  is  in  part  inadequate  and  in  part  false;  inade- 
quate in  that  it  is  not  unconditionally  necessary  that 
all  humanity  shall  be  socially  united ;  and  false,  or  rather 
no  solution  at  all,  in  that  the  attempt  to  dispense  with 
legal  coercion  is  conceivable.  Apart  from  his  results, 
Stammler's  method  is  open  to  criticism,  for  teleology 
involves  a  subjective  or  anthropocentric  factor.  Tele- 
ology recognizes  law  only  in  its  subjective  aspect,  its 
value  for  humanity.  But  the  true  question  relates  to 
the  objective  nature  of  law,  irrespective  of  the  opinion 
of  society.  To  my  mind  Stammler's  deductive  pro- 
cedure unfavorably  affects  the  value  of  his  conclusions; 
nonetheless  I  regard  them  as  not  far  removed  from  the 
correct  result.  Legal  coercion  is  in  fact  a  necessity, 
though  a  relative  and  not  an  absolute  one.  Like  custom 
and  morality  it  is  a  cultural  necessity,  because  it  artifi- 
cially restores  and  increases  that  power  which  humanity 
has  sacrificed  in  culture  and  through  culture,  that  is, 
the  natural  exercise  of  impulses,  lost  or  enfeebled  in  the 
course  of  civilization. 

Stammler's  conception  of  the  relation  between  law 
and  economics,  though  open  to  objection,  is  helpful. 
What  he  calls  social  life  or  social  economics  is  sub- 
stantially economics  as  the  material  content  of  law;  but 
inasmuch  as  Stammler  regards  all  social  life  as  regulated 
by  the  law  or  by  the  conventional  rules  of  custom,  he 
fails  to  consider  ■ —  which  Jellinek  and  Gothein  especially 
object  to — the  true  social  expressions,  the  spontane- 
ous expressions    of    the    members    of    the  community, 


422  SOCIOLOGICAL  PHILOSOPHEIS    [Ch.  Vll 

which  are  not  determined  by  hard  and  fast  conven- 
tional rules. 

Stammler 's  studies  are  notable  in  the  philosophy  of 
law  by  reason  of  his  restatement  of  the  fundamental 
problem  raised  by  "natural  law,"  the  problem  of  deter- 
mining the  principle  of  justice,  the  criterion  of  the  legal 
ideal.  His  contributions  enrich  important  problems  in 
the  general  theory  of  law  and  economics.  He  reinstates 
the  conceptions  of  the  older  philosophy  of  law  and  of 
historic  legislations;  he  frequently  refers  in  his  applica- 
tions of  the  principles  of  justice  to  what  the  Romans 
called  "sequitas"  or  "naturalis  ratio,"  and  what  the 
modern  legislation  of  the  German  code  terms  equity  or 
equitable  standards,  performance  in  good  faith,  etc., 
or  to  express  it  in  a  single  phrase,  the  idea  of  a  balanced, 
concordant  law. 

2:  Neo-Hegelianism.  J.  Köhler  (b.  1849)  is  a  neo- 
Hegelian,  holding  with  Hegel  that  law  is  to  be  considered 
as  a  cultural  phenomenon;  but  while  Hegel  regards  a 
philosophy  of  law  as  the  product  of  deduction,  Köhler 
proceeds  empirically,  leaning  upon  history  and  eth- 
nology'; and  this  is  a  great  step  in  advance.  Köhler 
rejects  the  principle  of  hedonism.  The  sentiment  with 
which  he  begins  his  work,  "Recht,  Glaube,  und  Sitte," 
reads:  "The  world  does  not  exist  for  our  pleasure."  ^ 
The  culture  of  a  people  determines  the  development 
and  form  of  its  laws.  "The  law  of  a  people  can  be 
interpreted  only  in  the  light  of  its  cnlire  culture;  which, 
in  turn,  is  to  be  interpreted,  as  cxlcndiiig  beyond  the 
material  economic  factors,  to  include  the  ethical  and 
religious  views  which  the  law  refleds.  Laws  are  not 
shai)ed  consciously  or  unconsciously  by  considerations 

'  C.riinli.,  Z.,  \'..l.  XIX,  p.  FAW  ;  also  pp.  .Wl^riOS,  609,  612,  on  which 
will  be  found  views  a^^ainst  utilitarianism  and  social  eudcnionism. 
Sec  also  the  excellent  i)resentation  in  the  "Enzyklopädie,"  p.  10. 


§481  NEO-HEGELIANISM  423 

of  iitility.  The  general  view  cf  lifeinfluences  the  law, 
and  from  such  composite  cultural  forces  the  law  arose. 
The  law  establishes  the  channels  through  which  the 
stream  of  culture  flows,  and  the  course  and  nature  of 
the  channels  take  their  character  from  the  cultural 
trends,  which  in  large  measure  are  sustained  by  the 
prevalent  beliefs  in  regard  to  the  spiritual  life  and  the 
divine  rule."  ^  Köhler  compares  the  religious  origins 
of  legal  institutions  and  enactments  and  thus  concludes:'^ 
"What  I  wish  to  set  forth  is  that  in  the  shaping  of  the 
law  there  have  been  operative  very  different  forces  than 
the  pursuit  of  temporal  welfare,  very  different  efforts 
than  those  aiming  at  happiness.  The  religious  attitude 
is  responsible  primarily  for  the  majority  of  legal  insti- 
tutions; the  law  finds  its  sanction  in  the  command  of  a 
higher  realm.  The  origin  of  primitive  law  lies  in  ani- 
mistic conceptions;  but  even  after  primitive  beliefs 
have  declined,  and  survive  only  in  superstitions,  the  law 
retains  its  religious  tenor;  even  when  law  is  apparently 
non-religious  in  that  it  treats  all  religious  communions 
upon  an  equal  footing,  it  becomes  not  irreligious  but 

1  Griinh.,  Z.,  Vol.  XIX,  p.  561.  Also  Köhler,  "Zur  Ethnologischen 
Jurisprudenz"  ("Z.  f.  v.  Rechtsw.,"  VI,  p.  407):  "Law  is  no  dead 
product  of  the  understanding  but  a  living  creation  of  human 
civilization  which  is  firmly  rooted  in  the  mental  soil  prepared  by 
religion,  custom,  and  education,  by  faith,  love,  and  individual 
efforts."  "Rechtsgeschichte  und  Weltentwickelung"  ("Z.  f.  v. 
Rechtsw.,"  V,  pp.  328  seq.:  "As  in  every  cultural  development  so 
also  in  the  development  of  law,  the  unconscious  plays  the  largest 
part;  inasmuch  as  the  development  does  not  proceed,  or  at  least 
not  notably,  according  to  the  desire  and  expectation  of  those  partici- 
pating therein.  Evolution  has  its  own  organic  laws.  That  there 
is  an  unconscious  rationality  in  the  history  of  civilization  is  the 
supreme  principle  supplied  by  the  history  of  law."  See  also  "Enzy- 
klopädie," p.  6,  §  3.  "Recht  als  Kulturerscheinung."  Also 
"Shakespeare  vor  den  Forum  der  Jurisprudenz,"  pp.  84    seq.,  239. 

^  "Recht,  Glaube  und  Sitte,"  p.  (510. 


424  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

religiously  neutral  as  affecting  the  several  religious  con- 
fessions. The  belief,  arising  from  the  deep  conviction 
that  the  destiny  of  humanity  is  not  determined  by  the 
goal  of  personal  happiness,  persists  in  the  law.  The 
law  remains^ primarily  moral  and  not  merely  hedonistic. 
The  law  has  its  ideals,  as  nations  have  their  ideals;  and" 
it  is  these  ideals  and  not  the  sense  of  utility  that  have 
brought  forth  legal  institutions." 

Kohler's  position  appears  in  his  conception  that  "the 
process  of  the  formation  of  the  law  can  be  understood 
only  as  part  of  the  general  development  of  a  people. 
A  history  of  law  that  disregards  the  racial  element  would 
be  like  a  history  of  art  that  neglects  the  cultural  forces 
from  which  the  art-impulse  and  its  expression  were 
derived."  "The  philosophy  of  law  must  set  forth  how 
at  every  stage  of  development  definite  legal  institutions 
have  embodied  the   cultural  ideals  then  maintained."  ^ 

The  State  is  justified  by  the  indispensable  part  that 
it  plays  in  the  development  of  culture;  its  existence  is 
necessary  because  only  an  association  of  the  govern- 
mental type  can  meet  the  needs  of  civilization."  The 
Hegelian  view  makes  the  State  a  requirement  of  the 
rational  nature  of  man  and  rejects  the  limitation  of  the 
State  to  the  interests  of  law.^  Historically  the  State 
appears  first  as  a  "Totem-State,"  the  totems  or  clans 
growing  out  of  the  family,  and   further  associated  by 

*  "Recht,  Cilaube  und  Sitte,"  pp.  564,  Gil.  "Enzyklopädie," 
§8,  pp.  14  seq.;  p.  14:  "Without  a  universal  history  of  law  there 
cannot  be  any  adecjuate  philosophy  of  law,  just  as  without  a  uni- 
versal history  there  can  be  no  philosophy  of  humanity,  and  without 
linguistics,  no  philosophy  of  language.     See  also  §  11,  pp.  17-20. 

*  "Knzykl()i)ädie,"  §  40,  pp.  ,^.')  .'')7.  "lunfiihrung  in  die  Rechts- 
wissenschaft," second  edition,  pp.  10!)  1  12.  P.  110:  "The  State  is 
a  legal  personality  existing  for  tlie  purpose  of  advancing  through 
their  inherent  \alue  tiie  ( liief  cultural  efforts  of  men,  within  certain 
n  alms." 


§48]  NEO-HEGELIANISM  425 

intermarriage;  and  the  resulting  alliances  strengthened 
by  a  common  headship.  Common  forays  for  pillage  and 
booty  led  to  their  organization  under  a  chief;  and  with 
the  support  of  the  priestly  class,  the  chieftainship  be- 
came a  kingship.  States  based  upon  community  of  race 
were  transformed  by  the  addition  of  foreign  elements 
into  a  State  based  upon  territorial  boundaries. 

In  the  domain  of  family  law,  as  in  law  in  general,  men 
at  first  formed  a  compact  communal  body;  it  is  only 
in  later  stages  that  the  individual  emerges  to  a  position 
of  legal  and  moral  self-assertion.  In  primitive  times  the 
family  bond  was  that  of  religion,  the  emblem  of  the 
common  totem  being  usually  that  of  an  animal  form, 
and  the  totem  itself  maintained  by  restrictions  of  mar- 
riage alliances.  The  restriction  of  marriage  under  the 
totem  was  based  upon  a  matriarchy,  which  in  turn, 
as  a  consequence  largely  of  the  capture  and  sale  of 
wi^'es,  gave  way  to  a  patriarchy,  the  process  aided  by 
the  ruling  position  of  the  chief.  Marriages  restricted 
to  the  communal  group  step  by  step  gave  way  to  the 
freedom   of  individual   marriage.^ 

Freedom  of  action  may  lead  to  wrongdoing;  and 
wrongdoing  to  atonement.  Punishment  is  justified  as 
an  atonement,  which  restores  the  individual  who  under- 
goes the  punishment,  through  the  atoning  and  purify- 
ing quality  of  pain,  and  through  him  the  effect  reacts 
upon  humanity.  "Humanity,  which  suffers  through 
misdeed,  is  saved,  and  the  poison  which  sin  brings  to 
men  is  counteracted  by  an  antidote."  ^  Law  as  retrib- 
utive justice  —  a  principle  still  operative  —  grows  out 
of  blood  vengeance,  the  right  of  revenge.  Punishment 
is  not  to  be  upheld  for  its  effect  upon  the  individual; 

1  "Enzyklopädie,"  §38,  pp.  51-54;  §39,  pp.  54  seq.;  §§17-23, 
pp.  27-34. 

^  "Das  Wesen  der  Strafe,"  pp.  6-19,  9. 


426  SOCICLOGICAL  FHILCSC  PHIES    [Ch.  VII 

punishment  must  be  strictly  differentiated  from  cjm- 
(lulsory   educational   and    protective   measures.^ 

Men  began  with  a  communal  law,  and  the  right  of 
vhe  individual  was  a  much  later  issue;  yet  social  insti- 
tutions continue  to  restrain  self-assertion  and  the  per- 
sonal exploitation  of  others.  A  return  to  a  communal 
form  of  life  and  a  communal  economics  is  out  of  the 
question.  The  principle  of  individual  right  is  firmly 
established.  "So  far  as  we  can  foresee,  the  ultimate  goal 
of  human  evolution  is  not  personal  happiness,  but  the 
maximum  development  of  culture,  on  the  one  hand 
towards  the  conquest  of  worldly  power,  and  again 
towards  the  dominion  of  the  spiritual  life.  Legal  theory 
as  well  as  legal  practice,  the  philosophy,  the  history, 
the  doctrine,  and  the  art  of  law,  are  similarly  indispen- 
sable as  means  to  the  comprehensive  advancement  of 
human  destiny.  The  law  partakes  of  the  divine  and  as 
such  will  endure."  ^ 

Kohlcr's  philosophy  and  its  development  upon  the 
legal  side  is  the  most  important,  and  perhaps  the  most 
\aiid  contribution  to  legal  philosophy  since  Hegel.  His 
researches,  ethnological  and  legal,  may  be  said  to  have 
made  possible  the  reinstatement  of  the  philosophy  of 
law  as  a  worthy  philosophical  discipline.  The  modern- 
ization of  the  Hegelian  philosophy,  the  presentation  of 
tlie  law  as  a  cuhural  expression,  is  a  most  valuable  and 
ji'jrmanent  service  not  as  yet  sufficiently  appreciated. 
Certain  of  his  critics  comment  disparagingly  on  his 
versatility,  forgetting  that  broadness  of  view  is  a  com- 

^  "ICnzyklopädic,"  §§  41  46,  pp.  57-6.3;  "EiiiführuiiR  in  die 
Rechtswissenschaft.,"  second  edition,  pp.  148-152. 

'  "i-jiz\l<l()j)ädi{',"  §51,  pp.  (J8  se(|.  ("Künftige  Bildnn^en"). 
Also  "Ke(lits^;eschichle  und  Wellen!  wiclcelung"  ("Z.  f .  v.  Rechtsw.," 
V,  pp.  '.V2H  ',VM);  "Die  Rechlspliilosophie  des  20.  Jahrhunderts" 
("I)enls(li<r  J iirislcnzcitnn.t;"),  I'.IOl,  pp.  2*.)  sv(\. 


§  48]  V.  HARTMANN  427 

mon  sign  of  capacity.  His  position  as  a  student  of  the 
historical  and  technical  aspects  of  law  has  been  more 
generally  recognized  then  has  his  merit  as  a  legal  phil- 
osopher. It  may  be  that  the  artistic  and  literary  tem- 
per of  his  writings  has  detracted  from  the  judgment 
of  their  scientific  value;  bjjt  the  more  impprtant  criti- 
cism relates  to  his  view  of  legal  and  economic  institutions, 
as  constantly  shifting,  as  lacking  all  points  of  arrest, 
which  deprives  his  philosophy  of  practical  appUcation. 
\ye  arc  part  of  an  endless  stream  of  development,  invol- 
untary instruments  of  a  rational  idea,  in  which  we 
believe,  but  which  we  cannot  direct.  Instead  of  encourag- 
ing the  efforts  of  the  individual  and  of  the  community 
in  their  guidance  of  the  ship  of  State  towards  the  real- 
ization of  a  practical  justice,  instead  of  supporting  a 
rational  direction  of  the  forces  of  evolution,  instead  of 
thus  affording  an  effective  objective  goal  of  endeavor, 
philosophy  invites  the  distracted  pursuit  of  a  constantly 
shifting  purpose.  If  the  philosophy  of  law  is  to  be  fruit- 
ful it  must  become  a  practical  discipline,  must  provide 
norms  of  human  action.  The  Hegelian  view,  as  an  expres- 
sion of  culture,  must  be  supplemented  by  considering 
that  the  purpose  of  culture,  including  the  cultural  aspects 
of  law  and  ethics,  is  to  increase  human  efficiency. 

3:  Hartmann.  Ed.  v.  Hartmann ^  (b.  1842)  in  his 
study  of  the  moral  consciousness  observes  the  existence 
of  a  psuedo-morality  which  is  egoistic,  seeking  individ- 
ual happiness;  and  again,  of  an  altruistic  pseudo-morality 

^The  works  of  Ed.  v.  Hartmann  to  be  noted  are:  "Phänomeno- 
logie des  Sittlichen  Bewusstseins.  Prolegomena  zu  Jeder  Künftigen 
Ethik,"  Berlin  1879.  The  second  edition  bears  the  title,  "Das 
Sittliche  Selbstbewusstsein.  Eine  Entwickelung  Seiner  Mannigfalti- 
gen Gestalten  in  Ihrem  Innerlichen  Zusammenhang  mit  Besonderer 
Rücksicht  auf  Brennende  Soziale  und  Kirchliche  Fragen  der  Gegen- 
wart." Selected  works,  2  vols.,  Leipzig  1S86.  "Die  Sozialen 
Kernfragen,"  Leipzig  1894.     "Ethische  Studien,"  Leipzig  1898. 


428  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

represented  by  moral  principles  enforced  by  authority. 
The  former  is  inconsistent  with  self-denial  which  sets 
the  negative  lower  limit  of  ethical  action;  the  latter 
derives  its  power  from  the  authority  of  the  head  of  the 
family,  or  of  the  State  through  its  legislation,  or  of 
custom  as  unconscious  morality,  or  of  religion  as  expres- 
sive of  God's  will  or  that  of  the  Church. 

Moral  principles  can  be  derived  only  from  the  moral 
consciousness  of  the  individual.  "The  attempt  to  bring 
about  an  action  of  subjective  ethical  value  by  the  im- 
position of  a  foreign  will  is  as  misdirected  as  would  be 
the  increase  of  one's  own  rations  for  the  purpose  of 
adding  to  another's  weight."  If  there  be  such  a  thing 
as  true  morality,  it  must  grow  out  of  the  moral  autonomy 
on  the  basis  of  the  voice  of  conscience;  yet  conscience 
"is  not  a  simple  and  original  datum  but  a  very  compli- 
cated result  of  all  the  several  impulses,  feelings,  opinions, 
prejudices,  tastes,  reasonings,  etc.,  that  participate  in 
the  formation  of  the  ethical  consciousness." 

As  motives  of  morality,  or  subjective  moral  principles, 
must  be  considered  a  series  of  factors  which  v.  Hart- 
mann groups  according  to  their  aesthetic,  emotional, 
and  rational  foundations.  Among  the  emotional  motives 
of  moral  action  are  the  moral  principles  of  reciprocity 
and  the  social  impulse.  Dissenting  from  Kant's  view, 
Hartmann  regards  the  sense  of  duty  merely  as  a  tendency, 
as  a  decisive  inclination,  provided  that  the  sense  of 
duty  is  strong  enough  to  lead  to  action.  Among  the 
rational  motives  of  moral  action  are  the  principles  of 
freedom  and  equality,  including  moral  freedom.  Here 
also  belong  righteousness  and  justice  and  equity.  To 
bring  about  the  general  recognition  of  order,  morality 
must  l)C  transf(jrmed  into  positive  enactments;  and  from 
this  necessity  arises  the  legal  order.  Morality  is  older 
than  the  legal  order  in  which  il   fiiuls  its  issue. 


§48]  V.   HARTMANN  429 

It  is  false  to  regard  the  power  of  coercion  as  the  cri- 
terion, differentiating  law  and  morality;  the  distinction 
fails  in  that  the  enforcement  may  not  always  be  real- 
ized; for  crime  may  go  undetected  and  injury  may  not 
have  compensation.  Coercion  is  not  an  essential  ele- 
ment of  the  law.  "It  is  not  the  physical  coercion,  but 
the  right  to  exercise  it,  that  is  an  integral  part  of  the 
law,  and  it  is  a  confusion  of  the  two  to  accept  physical 
coercion  as  the  essential  factor."  The  legal  order  re- 
flects the  expressions  of  the  moral  consciousness,  in 
so  far  as  these  have  become  clearly  realized  and  def- 
inite and  amenable  to  formal  regulation.  Hence  "the 
legal  order  ever  lags  a  little  behind  the  general  level 
of  the  moral  consciousness." 

Law  must  have  the  support  of  might,  but  must  never 
rest  upon  it.  The  position  of  "natural  law"  cannot  be 
sustained;  but  we  may  accept  as  established  its  under- 
lying ideas  that  the  legal  structure  is  not  accidental 
but  necessary,  proceeding  from  a  natural  trend  of 
human  nature,  and  that  the  legal  order  requires 
guidance  in  its  developmental  advance. 

Schopenhauer's  view  that  wrong  is  the  positive  con- 
ception, and  the  conception  of  right  is  derived  there- 
from, will  not  hold.  To  the  obligation  of  obedience 
on  the  part  of  the  citizen  subject  to  the  law,  there 
corresponds  that  of  justice  on  the  part  of  the  judge  as 
guardian  of  the  law.  Righteousness  and  justice  are 
the  dominant  virtues  of  men.  "Where  women  have 
influence,  there  favoritism  obtains."  The  intervention 
of  reason  in  supplement  of  the  law  constitutes  equity. 
As  ends  of  morality  or  objective  moral  principles  there 
have  been  proposed  social  hedonism,  evolution,  "the 
moral  principle  of  cultural  development,"  and  the 
moral  order  of  the  universe.  The  primitive  basis  of 
morality,  or  the  moral  principles,  appear  as  the  monistic 


430  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

principle  which  is  equivalent  to  the  essential  unity  of 
the  individuals;  as  the  religious  moral  principle  which 
is  equivalent  to  the  identity  with  the  absolute;  as  the 
absolute  moral  principle  which  is  that  of  an  absolute 
teleology  or  self-sufficiency ;  and  as  themoral  principle 
of  salvation  which  is  the  negative  absolute  hedonistic 
principle. 

The  moral  consciousness  finds  its  satisfaction  in  the 
absolute  moral  principle,  according  to  which  all  moral 
ideas  appear  as  strict  logical  consequences.  The  abso- 
lute moral  principle  is  all-embracing.  "It  appears  on  the 
one  hand  as  the  real  principle  and  basis  of  development 
of  the  subjective  and  objective  moral  order,  as  also  of 
the  moral  instincts,  ideas,  and  institutions;  and  on  the 
other  hand  it  is  the  conception  of  this  real  principle  as 
the  rational  basis  of  all  relative  moral  principles  and  of 
all  moral  problems."  Through  the  absolute  moral 
principle  the  identity  of  the  individual  with  absolute 
being  is  secured.  Yet  the  conviction  is  lacking  that  the 
absolute  process  is  teleological.  If  the  individual,  on 
the  basis  of  his  identity  with  the  absolute,  accepts  the 
absolute  teleology,  he  does  so  in  the  expectation  that  the 
moral  services  of  the  individual  will  accrue  to  the  benefit 
of  the  absolute.  But  this  is  the  case  only  when  the 
relative  purpose  furthered  by  the  individual  is  a  means 
to  the  absolute  end,  and  when  the  absolute  end  also 
accrues  to  the  benefit  of  the  absolute.  The  first  of  these 
conditions  is  fulfilled  "when  the  absolute  becomes  strictly 
logical  and  self-determining";  the  second  only  when 
"the  absolute  purpose  of  the  supreme  unity  is  absolute 
and  hedonistic,  that  is,  when  the  super-moral  end  which 
all  moral  means  serve,  is  the  happiness  of  the  absolute." 
The  negative  absolute  hedonistic  principle,^  considered 

M)ii  tlic  relation  of  I  larl  inann's  ethics  to  eudünionisni  see  Ilart- 
vuiiin,  "t.tliiM  iic  Studien,"  pp.   KiO  227. 


§49]  PSYCHOLOGY  AND  LAW  4.31 

as  the  absolute,  is  as  follows:  "The  salvation  of  the 
absolute  from  its  transcendental  misery  ('Unseligkeit') 
through  the  immanent  toil  of  the  world-process.  It 
may  be  more  briefly  termed  the  moral  principle  of 
salvation,  obviously  only  in  the  absolute  sense." 

This  view  combines  the  positions  of  Schopenhauer 
and  Hegel.  The  individual  as  a  corporeal  being  finds 
the  salvation  of  which  he  is  capaljle,  spontaneously,  in 
the  course  of  nature,  through  death  after  the  surcease 
of  vital  processes;  the  world  finds  its  salvation  "only 
through  consummation  of  the  world-process,  that  is, 
through  the  salvation  of  the  absolute  by  means  of  the 
fulfillment  of  the  world-purpose.  Only  through  the 
construction  of  a  moral  world-order  on  the  part  of 
reasoning  self-conscious  individuals  can  the  world- 
process  be  directed  towards  its  goal;  and  only  through 
an  ultimate  consciousness  of  the  negative  absolute 
hedonistic  meaning  of  this  purpose  can  the  end  itself 
be  attained.  Real  being  is  the  incarnation  of  divinity. 
The  world-process  is  the  history  of  the  passion  of  the 
incarnated  God  and  at  the  same  time  the  path  to  the 
salvation  of  Him  crucified  in  the  flesh.  But  morality 
is  CO  operation  in  the  reduction  of  this  path  of  sorrow 
and  salvation."  ^ 

§49.  Psychological  Aspects  of  Laiv.  1:  The 
Psychological  Basis.     Wilhelm  Wundt"  (b.  1832)  may 

^  The  sources  of  these  principles  will  readily  be  traced  in  the  succes- 
sive chapters  of  the  "Phänomenologie  des  Sittlichen  Bewu&stseins." 

2  The  works  of  Wundt  to  be  noted  in  this  connection  are:  "Logik," 
second  edition,  2  vols.,  2  parts,  Stuttgart  1895,  pp.  477-499,  533- 
588.  "Ethik,  Eine  Untersuchung  der  Tatsachen  und  Gesetze 
des  Sittlichen  Lebens,"  2  vols.,  third  edition,  Stuttgart  1903. 
"Völkerpsychologie,  Eine  Untersuchung  der  Entwickelungsgesetze 
von  Sprache,  Mythus  und  Sitte,"  Vol.  I,  "Die  Sprache,"  Parts  I 
and  II,  Leipzig  1900.  {Stcc  Berolzhcimcr,  "System,"  Vol.  I,  p.  118, 
note  23,  and  pp.  117  seq.,  for  bibliography.) 


432  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

be  regarded  as  the  most  influential  ]:)hilosopher 
of  the  day.  The  experimental  psychology  which  he 
emphasized  forms  the  most  important  division  of 
philosophy  considered  as  a  science  of  investigation  and 
not  merely  of  description.  This  dominant  psychologi- 
cal trend  may  be  called  neo-Socratic  in  that  it  aims  to 
establish  philosophical  truths  by  a  study  of  the  content 
of  the  human  mind. 

The  origin  of  law  is  according  to  Wundt  an  issue 
of  the  psychology  of  races. ^  "Like  language,  myth  and 
custom,  law  is  not  the  issue  of  an  arbitrary  consen- 
sus, but  is  a  natural  product  of  consciousness  firmly 
rooted  in  the  emotions  and  desires  arising  from  the  com- 
munal life  of  man." 2  Wundt  proposes  as  the  formal 
definition  of  law  "the  aggregate  of  privileges  and  duties 
which  the  superior  will  of  a  community  acknowledges 
as  incumbent  upon  the  individual  members  of  such  com- 
munity and  upon  itself."  There  is  no  natural  law,  and 
law  is  ever  a  concrete  positive  law.^  From  the  mode  of 
the  origin  of  law  Wundt,  in  his  "Logik,"  concludes  that 
the  law  is  not  necessarily  attached  to  the  State.  Law 
may  rise  in  communities  and  in  societies,  indeed  in 
every  form  of  association'*  ''that  is  capable  of  develop- 
ing a  communal  will  through  a  sufficient  consensus  of 
conceptions,  efforts  and  interests."  Law  has  external 
and  internal  characteristics;  the  former  appear  as  ex- 
pressions of  the  will,  the  latter  relate  to  "the  conform- 

1  Wundl,  "Logik,"  .second  edition,  Vol.  II,  Part  II,  pp.  533-542, 
533,  543,  542-501. 

''This  was  also  the  position  of  the  historical  school,  though  only 
as  hearing  upon  coniiniinal  interests.     See  above,   §  34. 

'"I.ogik,"  ]).  ryVl:  "Tliere  is  accordingly  as  liltlc  an  ahstnict  law 
as  there  is  a  universal  speech  or  a  universal  custom." 

«"Logik,"  II,  2,  i)p.  543,  .545-559,  546,  553. 


§49]  PSYCHOLOGY  AND  LAW  433 

ability  of  the  order  instituted  by  the  will  as  expressed 
in  law,  and  the  justice  thereof."  ^ 

Wundt  proceeds  to  construct  an  ethical  system  upon 
a  psychological  basis,  by  reference  to  the  data  of  the 
moral  consciousness  and  to  historical  consideration  and 
criticism  of  moral  philosophies.-  His  procedure  is  induc- 
tive but  is  not  confined  to  a  merely  empirical  study. 
Experience  shows  that  moral  conceptions  vary  widely 
and  thus  cannot  be  determined  a  priori.  Yet  moral 
development  does  not  depend  upon  mere  chance;  it 
reveals  an  ethical  aspiration,  a  striving  toward  a  higher 
purpose.  Moral  conceptions  are  consistent  issues  of 
general  culture.  Side  by  side  with  the  individual  will 
exists  the  general  will  of  the  community.  When  such 
a  collective  will  asserts  itself,  it  is  a  real  force;  it  comes 
to  prevail  above  individual  wills  and  develops  a  cultural 
efiiciency,  expressed  in  such  social  products  as  speech, 
custom,  law,  and  morality.  The  formulated  purpose 
and  the  one  attained  are  often  quite  diverse.  The  pur- 
pose is  generally  more  extensive  than  the  conscious 
intent.  This  Wundt  explains  by  the  fact  that  the  indi- 
viduals are  themselves  representatives  of  a  larger  cul- 
tural movement;  as  such  they  have  the  ethical  task  of 
bringing  their  individual  purposes  into  harmony  with 
those  of  a  general  progress.  Such  evolution  Wundt 
accepts  as  the  true  ethical  goal,^  which  can  be  completely 

^  This  factor  of  the  will  in  the  formulation  of  law  is  also  empha- 
sized by  Schuppe,  but  the  further  development  of  his  view  is  so 
bound  up  with  his  ethics  that  it  cannot  properly  be  considered  in 
this  connection.     See  below,   §50. 

2  The  data  of  the  moral  life,  that  is,  language  and  moral  concep- 
tions, religion  and  morality,  custom  and  social  life,  the  nature  and 
cultural  conditions  of  moral  development.  "Ethik,"  I,  pp.  20- 
279,  Vol.  I,  pp.  280  seq.,  is  historical- — the  development  of  moral 
conceptions. 

3  "Ethik,"  II,  pp.  27-30;  pp.  31  seq.  is  on  the  racial  psychological 
basis  of  this  ethical  theorv. 


434  SCCIOLCGICAL  PHILCSOPHIES    [Ch.  VII 

realized,  not  in  terms  of  the  individual,  but  of  the  race. 
Considering  that  for  "the  life  according  to  nature"  of 
the  Stoics  there  is  substituted  the  injunction  to  shape 
the  purposes  of  the  will  in  accord  with  the  development 
of  culture,  we  may  call  the  position  a  stoicism  upon  a 
racial-psychological  basis. 

The  moral  life  includes  the  individual  personality, 
society,  the  State,  humanity.  With  regard  to  the  ulti- 
mate moral  purpose  of  the  law,  in  terms  of  content,  the 
objective  law  may  be  described  "as  the  inclusive  con- 
ception of  all  individual  rights  and  duties,  which  the 
law,  as  expressing  the  general  moral  will,  secures  as  a 
right.  It  secures  them  in  its  own  behalf  and  in  behalf 
of  the  individual  wills  subordinated  to  it  in  order  to  aid 
them  in  their  pursuit  of  moral  purposes;  and  it  imposes 
them  as  a  duty  for  the  protection  of  such  laws."  ^ 

Externally  law  and  the  legal  order  appear  as  "the 
operations  of  the  will  of  the  State,  which,  as  such,  have 
enforcing  power  over  the  individual  wills  and  over  all  the 
more  limited  general  wills,  which  belong  to  the  com- 
munity as  legally  instituted.  Law  embraces  the  pur- 
poses which  the  will  of  the  State  pursues  and  the 
regulation  of  the  means  by  which  such  purposes  are  to  be 
attained."  -  Wundt  considers  the  functions  of  the  State 
with  reference  to  communal  ownership  and  economics, 
to  law  as  a  common  possession,  to  the  social  community, 
and  to  the  cultural  community.  Punishment  is  the 
natural  reaction  of  the  general  will  against  the  attempted 
iiifriiigcnient  on  the  part  of  the  ill-disposed  individual 
will  against  the  general  will.  It  is  a  special  type  of 
reaction,    related    to    retribution    and    reformatory   pur- 

'  "I'.lhik,"  II,  pp.  221  seq.,  2().S;  on  Justice,  see  pp.  209-211;  on 
l'.(|iiil  y,  pp.  21  I  s((|. 

''  "l-.liiik,"  I  I,  p.  2(l(').  'I  lie  (Ic  linilion  is  l"aiiil\'  in  llial  l\\v  one  un- 
k  MOW  II,  u  ill,  is  y;i\  (11  as  (he  cxpl  anal  ii  m  of  (lie  ol  lief  unknown,  law. 


§49]  PSYCHOLOGY  AND   LAW  435 

poses  but  not  identical  with  them.  The  essential 
factors  of  punishment  are  discipline,  atonement,  and 
educational  influences.^ 

2:  ZiTELMANN.  ZiTELMANN  (b.  1852)  contHbutcs 
an  important  study  of  will,  reason  and  consciousness. 
In  his  work,  "Irrtum  und  Rechtsgeschäft," ^  he  con- 
cludes that  "will  is  that  operation  of  the  mind  which 
acts  directly  upon  the  motor  nerves  and  thus  causes  a 
distinctive  bodily  movement.  The  will  is  in  itself  neither 
conscious  nor  unconscious;  it  becomes  the  one  or  the 
other  according  as  it  is  accompanied  by  the  perception 
of  its  content  or  not."^  Zitelmann  proceeds  to  study 
the  relation  of  perception  and  will  with  regard  to  acts, 
the  juristic  act,  "Rechtsgeschäft";  the  relation  of 
mistake  to  juristic  acts  in  general;  and  the  kinds  of 
mistake  in  the  several  divisions  of  juristic  acts  in 
particular.  The  compass  of  this  work  does  not  make 
possible  the  further  consideration  of  his  suggestive 
treatment. 

3:  Jellinek.  Georg  Jellinek*  (1851-1911)  is  an  im- 
portant contributor  to  the  philosophy  of  government. 

1  "Ethik,"  II,  pp.  306-3.50,  144-157,  152-156. 

^  "Eine  Psychologisch-Juristische  Untersuchung,"  Leipzig  1879, 
pp.  34-79,  83  seq. 

^"Irrtum  und  Rechtgeschäft,"  p.  79. 

*The  works  of  Jellinek  here  pertinent  are:  "Die  Sozialethische 
Bedeutung  von  Recht,  Unrecht  und  Strafe,"  Vienna  1878.  "Die 
Rechtliche  Natur  der  Staatenverträge,"  Vienna  1880.  "Gesetz  und 
Verordnung,  Staatsrechtliche  Untersuchungen  auf  Rechtsgeschicht- 
licher und  Rechtsvergleichender  Grundlage,"  Freiburg  i/B  1887, 
pp.  189-225.  "System,  der  Subjectiven  Öffentlichen  Rechte,"  Frei- 
burg i/B  1892.  "Über  Staatsfragmente,"  Heidelberg  1896,  pp. 
11  seq.  "Das  Recht  des  Modernen  Staates,"  Vol.  I,  "Allgemeine 
Staatslehre,"  Berlin  1900,  pp.  3-48,  96-101,  121-258,  302-341, 
394-460,  544-572,  696-719,  725.  See  aXso Ludwig  Stein,  "Die  soziale 
Frage  im  Lichte  der  Philosophie,"  second  edition,  pp.  411-415,  for 
an  estimate  of  Jellinek. 


436  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

Without  prejudice  to  other  writers,  his  "Allgemeine 
Staatslehre"  may  be  said  to  be  the  most  illuminating  of 
recent  works  in  this  field.  He  approaches  the  problems 
critically  and  is  under  no  inclination  to  yield  to  the 
allurement  of  the  social  philosophy  that  in  recent  years 
has  inveigled  so  many  able  minds. 

The  State  is  intimately  bound  up  with  all  social  phe- 
nomena, but  is  nonetheless  a  man-made  institution; 
accordingly  "the  analogy  between  a  communal  State 
and  animal  societies  rests  upon  a  confusion  of  the 
necessary  consequences  of  physical  organization  and 
instinctive  psychological  expressions  with  the  operations 
of  ethical  forces."  There  are  indeed  animal  societies, 
but  no  animal  States.  The  conception  of  society 
implies  the  existence  of  independent  institutions  inter- 
mediate betw^een  the  individual  and  the  State.  "Society, 
in  the  largest  sense,  refers  to  the  totality  of  the  psycho- 
logical associations  among  men  that  find  external 
expression.  In  this  sense  it  is  identical  with  a  corpora- 
tion, which  consists  of  a  large  number  of  separate 
permanent  or  transitory  relations  between  individuals. 
This  conception,  however,  is  so  broad  that  it  cannot  be 
made  the  basis  of  profitable  scientific  study.  The 
materials  upon  which  modern  sociology  bases  its  con- 
clusions are  often  but  a  deceptive  cover  for  a  priori 
constructions  based  u])<n\  inadequate  inductions."  Such 
a  conception  of  society  is  valuable  only  as  a  corrective 
to  bias(;d  theories  of  government. 

In  the  narrower  sense  society  denotes  "the  sum  total 
of  human  associations,  that  is,  of  groups  of  men  held 
together  by  some  common  factor."  A  hard  and  fast 
differentiation  of  State  and  society  is  not  iiossible.  The 
Stale  is  itself  a  form  of  social  i:)r(xluct,  and  at  once  the 
condition  as  well  as  the  issue  thereof.  "No  social  group 
can  be  conceived  as  existing  beyond  the  range  of  the  State 


§49]  PSYCHOLOGY  AND  LAW  437 

or  without  it.  One  may,  therefore,  question  the  vaUdity 
of  this  conception  of  society,  since  a  separation  of  State 
and  society  is  possible  only  as  an  abstract  conception," 
On  the  one  hand  all  social  groups  are  influenced  directly 
and  indirectly  by  the  State;  and  on  the  other  hand 
the  State  itself  forms  such  groups.  "To  avoid  con- 
fusion a  third  and  still  narrower  conception  of  society 
must  be  proposed  that  shall  include  the  social  groups 
with  the  exception  of  the  State."  "It  is  a  permanent 
merit  of  the  socialists,  and  of  those  who  have  profited 
by  their  teachings,  to  have  directed  attention  to  the 
connection  between  the  progress  of  the  law  and  social 
movements.  Yet  science  must  protest  against  the 
attempt  to  explain  the  entire  range  of  political  problems 
upon  a  narrow  socialistic  basis."  ^ 

The  State  is  often  termed  an  historical  necessity;  but 
if  the  view  is  to  be  scientifically  acceptable,  the  term 
necessity  must  be  interpreted  as  a  psychological    one.^ 

1  "Allgemeine  Staatslehre,"  pp.  74-90,  74  seq.,  84,  86  seq.,  88 
seq. 

^  In  Jellinek's  earlier  writings  the  psychological  moment  center- 
ing about  the  will  is  conspicuous  in  his  theory  of  the  State,  but  in 
"Allgemeine  Staatslehre"  it  is  relatively  subordinate.  See  Jellinek, 
"Die  Rechtliche  Natur  der  Staatenverträge,"  pp.  16  seq.;  "System 
der  Subjectiven  Öffentlichen  Rechte,  p.  28:  "The  will  of  the  State, 
which  in  this  respect  is  but  a  special  case  of  a  collective  person,  is 
no  figment,  but  exists  by  virtue  of  the  same  logical  necessity  by  which 
associated  permanent  and  unitary  purposes,  pursued  co-operatively 
by  groups  of  men,  appear  as  an  association  or,  as  we  may  say,  a 
unity.  If  such  unitary  personality  be  admitted  in  behalf  of  practi- 
cal thought,  it  has  also  its  own  will,  in  so  far  as  it  is  constant  and 
single  in  purpose,  coherent,  and  exercising  its  will  in  the  fostering  of 
its  purposes.  The  same  logical  necessity  through  which  we  make 
unity  of  plurality  appears  in  this  constant  active  will  directed  to 
the  attainment  of  its  purposes  as  a  distinctive  will,  not  merely  as 
the  voluntary  phase  of  a  physical  volition."  See  also  "Gesetz  und 
Verordnung,"  p.  190:  "The  State  is  a  dominant  organization  sup- 
ported by  a  powerful  will.  ' 


438  SOCIOLOGICAL  PHILOSOPHIES    [Cn.  VII 

The  psychological  view,  foreshadowed  by  Aristotle  — 
and  in  some  respects  the  ethical  view  of  society  —  in- 
cludes the  position  of  "natural  law,"  which  regarded 
certain  human  traits  as  directly  responsible  for  the 
establishment  of  government. 

Jellinek  does  not  consider  that  this  psychological  and 
historical  position  justifies  the  exercise  of  coercion  by 
the  State.  If  the  object  of  all  society  is  civilization, 
its  regulation,  which  means  a  permanent  voluntary 
association  of  defense  and  offense,  must  likewise  be 
recognized.  Without  some  form,  however  defective, 
of  legal  order,  there  would  be  a  state  of  war  of  all  against 
all.  The  problem  of  government  is  substantially  the 
same  as  that  of  law.  Jellinek  regards  the  position  of 
Aristotle  as  most  acceptable:  man,  improved  by  govern- 
ment, is  a  worthy  creation,  but  unrestrained  by  law  and 
order,  he  is  far  from  being  so.  Government  as  such  is 
thus  justified,  but  not  any  special  form  of  government, 
nor  any  special  type  of  distribution  of  authority  within 
the  State.  The  philoso]3hy  of  government  must  ever 
be  directed  to  the  State  of  the  present  and  to  the  growing 
institutions  of  the  immediate  future.  The  State  in  its 
concrete  development  can  only  be  justified  by  the  ends 
which  it  accom])lishes. 

According  to  Jellinek  the  State  is  characterized  by 
a  unity  of  purpose.  The  social  politics  resulting  from 
this  c()iice])tion  must  set  forth  the  purposes  by  which 
the  manifold  interests  combined  in  the  State  shall 
appear  as  one.  "The  existence  of  such  purposes  may  be 
deduced  from  the  incontestable  psychological  fact- that 
the  life  of  the  State  consists  of  an  uninterrupted  series  of 
human  actions,  each  of  which  is  necessarily  conditioned 
by  a  motive,  and  thus,  by  a  ])ur])ose."  The  problem  of 
the  purposes  of  the  Stale  cannot  be  solved  deductivch'. 
Even  the  demand   ihaL  the  jjurpose  of  the  State  shall 


§49]  PSYCHOLOGY  AND   LAW  439 

be  the  realization  of  law,  tells  one  nothing  concerning 
the  content  of  the  law,  and  through  it  of  the  State's 
purpose.  After  a  review  of  the  several  theories  of  pur- 
pose, Jellinek  reaches  the  formulation  of  his  theory  of 
relative  State  purposes.  A  simple  psychological  reflec- 
tion will  show  that  the  State  cannot  enforce  what 
belongs  to  the  inner  life  of  man;  therefore  the  sphere 
of  the  State  includes  only  "collective  human  expressions. 
Such  purposive  collective  human  expressions  belong 
distinctively  to  the  State.  They  may  be  reduced  to 
the  three  great  categories,  of  protection,  regulation, 
support.  The  greater  the  joint  interests,  the  more  does 
the  State  serve  for  their  satisfaction;  the  more  uni- 
fied the  purposive  organization  that  is  needed  for  its 
protection,  the  more  completely  does  it  become  the 
concern  of  the  State.  Such  solidarity  is  a  dynamic 
force,  differently  expressed  in  the  several  spheres  of 
communal  development  at  different  times  and  among 
different  peoples.  The  detailed  formulation  of  the 
principle  must  be  adapted  to  the  prevalent  stage  of 
culture." 

Among  the  most  important  interests  conducive  to 
social  solidarity  is  the  development  of  individuality. 
Jellinek  pertinently  remarks  that  the  "vague  idea  of 
furthering  welfare  yields  no  insight"  as  to  the  nature  of 
the  problems  of  the  State.  The  final  purpose  of  all 
governmental  activity  is  to  further  the  progressive 
development  of  the  individual  members  of  society  and 
of  the  race.  "As  justified  by  its  purpose,  the  State  is  a 
complex  associative  expression  of  a  people.  Its  opera- 
tions are  designed  and  centralized;  and  its  institutions 
utilize  the  activities  of  individuals,  of  the  nation,  of 
humanity.  It  possesses  a  dominating  legal  personality, 
and  directs  collective  interests  towards  a  progressive 
development."     This    conception    of    the    State    is    a 


440  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

functional  one:  along  with  it  must  be  considered  the 
legal  conception  in  which  the  State  is  the  subject  of  law. 
Under  the  legal  conception,  the  State  is  "the  corporate 
expression  of  an  established  people  with  an  autonomous 
sovereignty,"  or  "an  autonomous  corporation  exercising 
territorial  sovereignty."  ^  The  factors  of  the  State 
are  its  territory  ("Staatsgebiet"),  the  people  ("Staats- 
volk"),  and  authority  ("Staatsgewalt").^  Sovereignty 
is  "the  negation  of  every  subjection  or  restriction  of  the 
State  through  an  alien  power."  The  sovereign  authority 
of  the  State  is  therefore  "at  once  the  independent  and 
supreme  authority."  Sovereignty  is  no  essential  char- 
acteristic of  the  governmental  authority.^ 

The  question  as  to  the  origin  of  the  State  falls  into 
two  subsidiary  problems:  the  historical  beginning  of 
governmental  institutions,  and  the  formation  of  new 
States  within  the  existing  governmental  development. 
As  to  the  former,  only  hypotheses  are  possible.  The 
developed  form  of  communal  life,  which  we  today 
designate  "the  State,"  is  dependent  upon  permanence  of 
settlement.     Such  permanence  of   settlement  is  closely 

1  "Allgemeine  Staatslehre,"  pp.  lOf)  204,  205-238,  209,  213, 
224,  226  seq.,  228,  235,  236,  237,  121-161,  149-151,  161.  See  also 
"System  der  Subjectiven  Rechte,"  pp.  12-39,  13,  20,  26. 

On  the  etymology  and  change  of  meaning  of  the  word  "State" 
see  "Allgemeine  Staatslehre,"  pp.  115-120. 

^2  "Allgemeine  Staatslehre,"  pp.  355-393.  "Über  Staatsfrag- 
mente," p.  12:  "A  state  is  accordingly  a  collectivity  with  its  own 
sphere,  its  own  subjects,  and  its  own  authority,  which  is  either  in- 
depende.it  of  any  external  authority,  that  is,  sovereign,  or  is  in  some 
respects  limited  by  the  authority  of  a  still  higher  sovereign 'State 
and  is  thus  not  sovereign.  All  three  elements  are  necessary  for 
the  existence  of  the  State;  if  any  one  is  lacking  then  there  is  no 
State,  bill  merely  some  form  of  organization  subordinate  to  the 
State." 

3  "Allgi'inciiic  Si, Lit  sichre,"  pp.  31M  KK),  V.'A  seq.,  442  seq. 
Abo  "(iesci/  und  \cr(jrdiiimg,"  p|).  l'.»7  201,  2t)  1-205-  See  also 
noli-  IS,  abo\c. 


§49]  PSYCHOLOGY  AND  LAW  441 

connected  with  the  pursuit  of  agriculture ;  but  the  phases 
of  its  early  stages  of  evolution  are  uncertain.  The 
consolidation  of  human  intercourse  is  aided  by  "a 
natural  tendency  of  regulated  uniformity  of  action." 
The  incentives  for  the  formation  of  the  State  are  thus 
also  the  incentives  for  the  formation  of  law. 

The  problem  of  law  may  be  approached  either  through 
metaphysical  speculation,  that  is,  through  its  concep- 
tion "as  a  force  independent  of  man,  and  involved  in  the 
objective  nature  of  phenomena";  or  psychologically, 
that  is,  by  its  study  as  a  subjective  phenomenon  of 
human  expression.  Jellinek  adopts  the  second  proce- 
dure. The  law  consists  of  regulations  for  human  con- 
duct. It  is  further  to  be  distinguished  from  other  norms, 
such  as  those  of  religion,  morality  and  custom.  Its 
specific  character  lies  in  the  following  characteristics 
of  legal  norms:  "They  are  norms  for  the  external  rela- 
tions of  men  to  one  another;  norms  that  issue  from  a 
recognized  external  authority;  and  norms  whose  bind- 
ing force  is  guaranteed  through  external  authority." 
The  essential  characteristic  of  law  is  that  it  shall  pre- 
vail; for  this,  it  is  necessary  that  its  psychological 
efficiency  be  guaranteed.  "The  operation  of  a  law  is 
guaranteed  when  the  motive  power  of  its  prescriptions 
is  so  re-enforced  by  social  psychological  influences,  that 
the  expectation  is  justified  that  the  norms  which  the 
law  enforces  will  be  able  to  assert  themselves  as  motives 
of  conduct  against  the  opposing  individual  motives."^ 
If  the  term  "State"  is  to  be  understood  as  the  developed 

1  "Allgemeine  Staatslehre,"  pp.  239-254,  241,  302-341,302, 
302  seq.,  304.  "Die  Sozialethische  Bedeutung  von  Recht,  Unrecht 
und  Strafe"  (The  social  ethical  meaning  of  right,  wrong,  and  pun- 
ishment), p.  116:  "Acts,  undertaken  by  society,  and  in  a  developed 
state  of  civilization,  by  the  State,  against  the  perpetrator  of  a  wrong, 
through  which  the  effects,  injurious  socially  and  psychologically, 
resulting  from  the  wrong,  are  equalized,  is  punishment." 


442  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

State  in  the  modern  sense,  then  law  existed  even  before 
the  State;  but  if  the  term  implies  the  supreme  and  sov- 
ereign corporation  of  any  period,  then  the  law  will  find 
only  in  and  through  such  dominant  organization,  the 
necessary  external  guaranty  for  the  realization  of  legal 
norms.  But  the  State  is  not  the  exclusive  source  of 
law;  Jellinek  maintains  that  even  at  the  present  time 
there  are  numerous  associations  independent  of  the 
State  (such  as  the  Church),  that  create  laws;  but  this 
view  may  be  questioned.^ 

George  Simmel^  (b.  1858),  in  his  "Einleitung  in  die 
Moralwissenschaft,"  makes  a  careful  analysis  of  the 
fundamental  ethical  conceptions  from  the  psychological 
point  of  view.  In  his  "Philosophie  des  Geldes"^  the 
problem  of  values  and  the  social  and  cultural  signifi- 
cance of  possession  are  considered  in  detail.^ 

4:  Criminal  Psychology.  Gabriel  Tarde^  (b. 
1843)    holds   that   the   psychological   impulse,  expressed 

^  "Allgemeine  Staatslehre,"  pp.  329-331. 

^VonSimmel:  "Bemerkungen  zu  Sozial-Ethischen  Problemen," 
Vol.  12,  1888,  pp.  32-49.  "Über  Soziale  Differenzierung,  Soziolo- 
gische und  Psychologische  Untersuchungen"  (Schmoller's  "Staats- 
und Sozialwissenschaftliche  Forschungen,"  Vol.  10,  Part  I),  Leipzig 
1890.  "Einleitung  in  die  Moralwissenschaft,  eine  Kritik  der  Ethis- 
chen Grundbegriffe,"  2  vols.  Stuttgart  and  Berlin,  1892-1893. 
Anastatic  reprint,  Stuttgart  1904.  "Philosophie  des  Geldes," 
Leipzig  1900.  Kant,  "l()  Vorlesungen  an  der  Berliner  Universität," 
Leipzig  1904. 

See  Ueherweg- Ileinze,  "Grundriss  der  Geschichte  der  Philoso- 
phie,''  IV,  p.  347,  for  an  estimate  of  Simmel. 

3  "Pliilosopliic  des  Geldes,"  \^[).  3-87.  Tlie  significance  of  money 
is  Ion  present  llie  economic  relativity  of  things  (pp.  82-87).  In 
addition  there  is  the  material  value  of  money  (pp.  88-112). 

<  "Philosophie  des  Geldes,"  pp.  279-454,  455-rj54. 

^The  writings  of  Tardc  here  pertinent  are:  "Les  Lois  dc  I'lmita- 
1  inn.  Va  iide  Sociologi(|iic."  ^-ccond  edit .,  l\iris  1895  (  'Bibliothcque 
•Ic  I'liilo^iiphie  COnlcniporaiiic,"  IKl).    "la  Logitpie  Sociale  (    Bibl.," 


§49]  PSYCHOLOGY  AND   LAW  443 

in  the  law  of  imitation,  is  the  important  trait  leading  to 
social  solidarity.  He  interprets  rational  behavior  as 
psychological.  He  bases  ethical  and  legal  responsibility 
upon  the  sense  of  social  similarity.^  He  was  the  first 
to  emphasize  and  illustrate  in  detail  the  importance  for 
the  social  life  of  conscious  imitation  and  subconscious 
assimilation.-  He  aims  to  establish  logic  as  a  psycho- 
logical phenomenon.^  Tarde  finds  followers  in  Sighele, 
Aschaffenburg,    Krause,  and  others.^ 

etc.,  124),  Paris  1S9.5.  "La  Philosophie  Penale,"  eighth  edit.,  Lyon- 
Paris  1904.     (I  cite  from  the  1900  edition,  the  one  accessible  to  me.) 

i"La  Philosophie  Penale,"  pp.  83-213  (Chap.  Ill:  "Theorie 
de  la  Responsabilite,"  pp.  83-148;  Chap.  IV:  "Theorie  de  la  Irre- 
sponsabilite,"  pp.  149-213).  See  also  Berolzheimer,  "Die  Entgeltung 
im  Strafrechte,"  92-97,  102,  206,  319. 

^  See  particularly  "Les  Lois  de  I'lmitation,"  second  edit.  Chap. 
II,"Les  Similitudes  Sociales  et  I'lmitation  (pp.  46-65);  Chap.  Ill, 
"Qu'est-ce  qu'une  Societe?"  (pp.  66-98);  Chap.  V,  "Les  Lois 
Logiques  de  I'lmitation  (pp.  158-212);  Chaps.  VI  &  VII,  "Les  Influ- 
ences Extra-Logiques"  (pp.  213-266,  267-396).  P.  73:  "Hence 
arises  this  definition  of  the  social  group:  a  collection  of  individuals 
so  far  as  they  are  (lisi)oscd  to  imitate  one  another  or  in  so  far 
as  without  actual  imitation  they  resemble  one  another  and  their 
common  traits  are  older  copies  of  the  same  model."  P.  95:  "Society 
is  imitation;  and  imitation  is  a  kind  of  somnambulism;  such  is 
the  epitome  cf  this  chapter." 

'  "La  Logique  Sociale,"  Part  I,  Chap.  I,  "La  Logique  Individuelle," 
pp.  1-86.  Chap,  II,  "L'esprit  Social  ("Logique  Sociale  Statique)," 
pp.  87-133.  Chap.  Ill,  "La  Serie  Historique  des  etats  Logiques 
("Logique  Sociale  Dynamique"),  pp.  135-1.50.  Chap.  IV,  "Les  Lois 
de  rinvention  ("Logique  Sociale  Dynamique,  suite"),  pp.  151-223. 
Part  II:  "Applications;  La  Langue;  La  Religion;  Le  Coeur;  I'Eco- 
nomie  Politique;  I'Art. 

*  For  further  references  see  Wahlberg,  "Gesammelte  Kleinere 
Schriften  und  Bruchstücke,"  Vol.  II,  Vienna  1877.  "Die  Moral- 
statistik und  die  Strafrechtliche  Zurechnung,"  p.  295.  Havelock 
Ellis,  "Verbrecherund  Verbrechen"  (Kurella's  translation),  Leipzig 
1894,  pp.  310-315.  Hans  Gross,  "Kriminalpsychologie,"  Graz 
1898,  pp.  566-569.     Lombroso,   "Die   l^rsachen    und    Bekämpfung 


444  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

J.  Mark  Baldwin's  "Social  and  Ethical  Interpre- 
tations in  Mental  Development"  ^  shows  the  influence 
of  Tarde.  The  following  is  Earth's^  comment  upon 
it:  "In  the  present  work  Baldwin  develops  the  view  that 
the  psychological  analogy,  as  already  proposed  by  others, 
between  the  mental  life  of  the  individual  and  that  of 
society,  between  the  egoistic  and  altruistic  actions, 
should  also  be  made  the  problem  of  psychology.  He 
maintains  that  external  actions  referring  to  persons, 
whether  to  one's  own  person  or  another's,  spring  from 
the  thought  of  the  self,  from  our  conception  of  human 
personality  in  general;  and  that  in  our  actions  we  are 
by  no  means  always  conscious  of  ourselves  or  whether 
the  personality  is  our  own  or  belongs  to  another."  Such 
considerations  affecting  human  action  Baldwin  calls 
sanctions,^  which  in  turn  are  in  part   personal,  in  part 

des  Verbrechens,"  translated  by   Knnila  and  Jentsch,  Berlin  1902, 
pp.   188  seq. 

Scipio  Sighele's  "Psychologie  des  Auflaufs  und  der  Massenver- 
brechen" (translated  by  Kurella:  Dresden  and  Leipzig,  1897,  espe- 
cially pp.  41-106)  is  influenced  by  Tarde.  For  Aschaffenburg  see 
above,  §  44.  The  sociological  school  of  penology  emphasizes  the 
study  of  criminal  motives.  See  A.  Krauss,  "Die  Psychologie  des 
Verbrechens,  ein  Beitrag  zur  Erfahrungsseelenkunde,"  Tübingen 
1884,  and  Ajtdreas  Thomsen,  "Untersuchungen  über  den  Begriff 
des  Verbrechensmotivs,"  Munich  1902.  See  also  the  symposium, 
"Zur  Psychologie  der  Gefangenschaft.  Untersuchungshaft,  Gefäng- 
nis- und  Zuchthausstrafe  Geschildert  von  Entlassenen,"  compiled 
by  Fritz  Auer,  describing  phases  of  prison  life  as  portrayed  by  dis- 
charged prisoners.      Munich   1905. 

'  "Social  and  l^thical  Iiilcrpretations  in  Mental  Development" 
(translated  from  the  second  ICnglish  edition  by  R.  Ruedemann, 
with  a  preface  by  Paul  Barth,  Leipzig  1900).  Baldwin's  other  writings 
are   not   perl  incut   here. 

^  Preface  to  the  German  cdilion,  ]i.  x. 

'  "Das  Soziale  und  Siltli(  111-    I  .<I)fii,"  i)ii.  285   seq. 


§49]  PSYCHOLOGY  AND  LAW  445 

social.^  "A  sanction  is  any  ground  or  reason  which 
is  adequate  to  initiate  action,  whether  the  action  be 
conscious  or  not  that  this  is  the  ground  or  reason  of  the 
resulting  action." ^  Baldwin  sets  forth  that  man  is  fre- 
quently not  fully  aware  of  the  motives  of  his  actions, 
that  he  may  even  be  deceived  as  to  the  motives;  or 
that  the  unconscious  exerts  more  or  less  important  in- 
fluence upon  the  content  of  the  conceptions  that  serve 
as  motives.^ 

Bearing  upon  the  last  consideration  is  Georg  Adler's 
position  in  his  "Bedeutung  der  Illusionen  für  Politik 
und  Soziales  Leben." ^  He  sets  forth  that  in  politics 
and  social  movements,  and  notably  in  modern  socialism, 
the  cause  assigned  and  the  actual  cause  bringing  about 
collective  movements  frequently  diverge,  and  that  fal- 

^  German  edition,  pp.  285-322,  322-354.  The  institutions  through 
which  these  sanctions  are  expresssd  are  divided  into  four  groups  — 
natural  sanctions,  pedagogical  and  conventional  sanctions,  civil 
sanctions,  ethical  and  religious  sanctions. 

2  P.  288  (German  edition) ;  first  English  edition,  p.  361. 

3  See  especially  pp.  285-289. 

*  Jena  1904.  See  also  above,  preface,  p.  XLII,  Note  1.  In  this 
work  Adler  refers  to  his  former  writings  in  which  he  has  developed 
this  thought.  The  idea  was  first  explicitly  formulated  by  Adler; 
others  had  previously  expressed  the  same  general  view.  See  Schmoller, 
"Die  Gerechtigkeit  in  der  Volkswirtschaft"  {Schmoller,  "Zur  Sozial- 
und  Gewerbepolitik  der  Gegenwart,"  Leipzig  1890,  p.  205):  "No 
great  social  or  economic  reform  can  overcome  the  inert  opposition 
that  it  arouses  by  proof  of  its  utility.  It  is  only  when  what  is  de- 
manded can  be  set  forth  as  just,  that  the  claim  is  vitalized  and  starts 
a  movement.  I  have  for  years  observed  how  and  when  the  question 
of  justice  was  introduced  in  public  discussion  and  in  economic 
publications,  and  I  found  that  it  occurs  involuntarily  in  almost  all 
cases."  See  also  Alex.  Tille,  "Volksdienst,"  Berlin  and  Leipzig  1893, 
p.  110. 


446  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

lacy  and  illusion  exercise  an  important  beneficial  influ- 
ence in  the  history  of  civilization.^ 

§  50.  Recent  Surveys  of  Fundamental  Problems.  1 : 
Merkel  and  his  Followers.  The  writings  of  Adolf 
Merkel-  (1836-1896)  are  notable  for  their  wealth  of  perti- 
nent observations  and  keen  analysis.  They  present  an 
idealism  based  upon  an  appreciation  of  actual  conditions 
which  gives  promise  of  a  fruitful  development  of  the 
philosophy  of  law.  Though  not  forming  a  system  of 
legal  philosophy,  Merkel's  writings  are  important  for 
their  thorough  treatment  of  the  fundamental  problems 
of    law   and    punishment. 

There  is  an  inherent  human  interest  in  the  apportion- 
ment of  what  men  deserve  and  what  they  secure.  There 
is  a  deep-rooted  conviction  that  in  some  manner  for- 
tune and  m.erit  must  be  brought  into  relation.  This 
conviction  permeates  popular  religious  and  moral  con- 
ceptions; it  gives  rise  to  a  popular  proverbial  philosophy. 
The  demands  of  morality  require  a  presumable  con- 
nection between  good  or  ill-fortune  and  the  laws  of  com- 
pensation. In  this  sense  of  moral  adjustment  lies  the 
source  of  the  legal  demand  for  retributive  justice.^ 

'  Masaryk:  "Die  Philosophischen  und  Soziologischen  Grundlagen 
des  Marxismus,"  Vienna  1S99,  p.  150,  and  Eisler:  "Soziologie," 
Leipzig  1908,  pp.  63  seep  (sec  above,  §  44,  p.  381),  emphasize  the 
psychological  phase  of  social  origins  and  relations.  Bergeniann, 
"Ethik  als  Kulturphilosophie,"  Leipzig  1904,  pp.  367-475  (see 
above,  §§44  and  42),  considers  the  social-psychological  factor  in 
addition  to  the  personal  factor  in  the  genesis  of  morality.  Karl 
Kniess  in  "Der  Kredit,"  Berlin  1876,  p.  138,  had  already  noted  the 
"psychology  of  the  masses"  as  a  contributing  social  force. 

"^  Adolf  Merkel,  "1  linterlasscne  Fragmente  und  Gesammelte 
Abhandlungen."  Part  I:  "I'Vagmente  zur  Sozial  Wissenschaft," 
Strassbiirg  1898.  J'art  II,  1  and  2:  "Gesammelle  Abhandlungen 
aus  dem  Gcbid  der  Allgenieincn  Rechlslehre  und  des  Strafrechts," 
edited  by   Rndnlf  Merkrl,  Sl  nissl.iirg    IS99. 

'"Über     Vergillindc     ( '.(ici  lil  igkcil  "     ("  I  liiilcrl.isscne     l'Vagni." 


§  50]  RECENT  SURVEYS  447 

The  philosophy  of  law  has  to  do  only  with  positive 
law.^  Law  is  "the  standard  which  a  community  estab- 
Hshes  with  reference  to  the  relation  of  its  members  to 
others  and  to  itself,  as  well  as  to  the  expressions  of  its 
own  activity."  Law  is  the  principle  of  order.^  "A 
certain  element  of  authority  is  inherent  in  all  law.  It  is 
itself  a  form  of  authority  to  which  certain  superior 
qualities  are  attached."  This  applies  as  well  to  law 
as  to  rights.  The  conception  of  rights  involves  the 
actual  power  to  exercise  them.  The  starting-point  of 
law  is  self-help;  hence,  so  far  as  bears  upon  its  efficiency, 
law  depends  upon  the  means  of  enforcement  which  the 
claimant  is  able  to  put  into  operation.  In  so  far  as  this 
principle  of  self-help  holds,  "the  success  of  rights  in  any 
given  case  depends  upon  the  contest  of  power  between 
the  claimant  and  his  adversary,  and  thus  individual 
right  and  individual  power  are  closely  associated." 
This  applies  also  to  the  acquisition  of  rights.  The 
primitive  mode  of  such  acquisition  seems  to  have  been 
seizure;  in  primitive  stages  of  legal  development,  the 
legal  status  of  possession  was  substantially  independent 
of  the  manner  in  which  it  was  acquired.^ 

Progress  in  the  forms  of  acquiring  rights  and  of  legal 
contests  and  standards  was  very  gradual.  Instead  of 
the  trial  of  strength  between  the  litigants,  a  procedure 
of  proof,  presented  to  the  constituted  authority,  was 
introduced;   in  the  weighing  of  evidence  "the  distinctive 

etc.),  II,  1,  pp.  1-14,  2,  3,  6.  See  also  "Lehrbuch  des  Deutschen 
Straf  rechts,"  pp.  9-29. 

^  "Über  das  Verhältnis  der  Rechtsphilosophie  zur  'Positiven' 
Rechtswissenschaft  und  zum  Allgemeinen  Teil  Derselben"  ("Fragm.," 
etc.,  II,  1,  pp.  291-323,  308  seq.  See  above;  also  Merkel, 
"Elemente  der  Allgemeinen  Rechtslehre,   §§  12-14. 

'^  "Elemente  der  Allgemeinen  Rechtslehre,"  §  1. 

3  "Recht  und  Macht"  ("Fragm.,"  etc.,  II,  L,  pp.  400^28,  403.  See 
also  "Elemente  der  Allgemeinen  Rechtslehre,"  §  7. 


448  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

position  of  legal  authority  appears  with  ever  extending 
importance.  The  question  of  law  comes  to  be  more 
nearly  a  question  of  the  better  cause  in  view  of  the 
interests  and  considerations  which  have  instituted  the 
power  of  the  law.  The  acknowledgment  of  a  claim 
comes  to  have  an  equally  legitimate  bearing  upon  past 
and  future  interests.  It  involves  an  ethical  judgment 
of  the  past  circumstances  which  underlie  the  presented 
claim."  In  such  development  the  contrast  of  status 
between  the  strong  and  the  weak  in  the  realm  of  the 
law  is  diminished.  Indeed  in  many  respects  the  law 
becomes  the  protection  and  defense  of  the  weak  and 
thus  restores  the  balance  of  power.  Were  it  possible 
to  find  a  harmonizing  principle  applicable  to  all  human 
interests,  it  would  serve  as  the  basis  for  a  universally 
recognized  law.  But  the  law  will  never  be  able  to 
satisfy  all  the  several  legitimate  interests  and  attitudes 
and  feelings,  as  well  as  the  demands  growing  out  of  them. 
The  law  thus  bears  throughout  "the  character  of  a 
compromise."  ^ 

In  his  (level o])ment  of  general  jurisprudence  Merkel 
ap])roaches  the  ]:)osition  of  the  theory  of  norms.  But 
in  contrast  to  Binding,  Merkel  denies  the  autonomy 
of  the  law.  "The  law  does  not  carry  its  purpose  within 
itself,"  nor  does  it  exist  for  the  sake  of  the  ethical  satis- 
faction which  arises  from  the  oi)erati()n  of  justice. 
Merkel,  in  common  with  Ihering,  inclines  to  regard  the 
end  in  view  ("Zweck")  as  creating  the  law.  The  law 
is  the  organ  of  social  interests.  Law  and  the  State 
arose  together  and  had  a  common  (l(>velo])metit.  But 
the  State  could  not  create  law,  nor  tloes  the  legal  (juality 
belong  to  all  the  exi)ressions  of  the  State.     For  "every 

»"Rcdit  1111(1  Maclil,"  pp.  ^07  411,410,411  420,  4  1 1,  seq..  420 
sc'f|.,  420-422.  Sec  al.so  "ICIcmcnte  flcr  Allgemeinen  Keciit sichre," 
J  11:    "Die  Komi)iomissiuitur  des  Rechts." 


§  50]  RECENT  SURVEYS  449 

community  which  possesses  the  power  to  regulate 
independently  the  relations  of  its  members  to  one 
another  and  to  the  State  may  establish  its  own  laws." 
Whether  it  does  so  by  virtue  of  governmental  delegation 
is  a  question  of  fact.  And  on  the  other  hand  the  State 
is  not  merely  a  legal  institution.  In  this  opinion  Merkel 
has  in  mind  the  governmental  operation  of  industrial 
institutions  in  the  emergency  of  war. 

The  factors  of  the  State  are  the  State  authority,  the 
State  territory,  and,  in  the  classical  as  well  as  in  the 
modern  State,  the  vmlimited  legal  power  of  regula- 
tion within  the  sphere  of  the  State.  The  State  is  the 
"organization  of  a  community  or  the  sum  total  of 
institutions  by  means  of  which  the  regulated  activities 
of  the  common  life  of  a  people  finds  its  realization." 
"Associations  of  various  types"  precede  the  State.  The 
chief  occasion  leading  to  the  formation  of  the  State  is 
war;  it  is  through  the  suppression  of  feuds,  or  again 
in  the  interests  of  a  common  defense,  and  for  the  forcible 
subjection  of  a  foreign  tribe,  that  the  State  is  established 
through  the  medium  of  war.  With  reference  to  the  nature 
of  the  State,  Merkel  inclines  to  the  organic  evolutionary 
conception  thereof,  yet  with  due  recognition  of  the  free 
self-assertion  of  the  individual.* 

By  retribution  Merkel  understands  "a  counteraction 
to  offset  evil  or  good  transactions,  which,  as  affecting 
their  authors,  bring  about  an  equalization  of  the  dis- 
proportion between  the  status  of  those  involved  actively 
and  passively  in  the  transaction."  ^  He  holds  that  as 
affecting  punishment,  retribution  and  the  effect  upon 
the  individual,  "Zweckstrafe,"  are  not  exclusive.  The 
sources  of  the  feeling  of  responsibility  are  based  upon 

^"Elemente  der  Allgemeinen  Rechtslehre,"  §§4,  5,  39  seq., 
2,  14,  15-17,  18,  19. 

^  "Lehrbuch  des  Strafrechts,"  p.  187. 


450  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

the  consciousness  of  being  the  cause  of  one's  own  acts, 
and  likewise  upon  the  traditional  ethical  conceptions 
of  value  which  remain  uninfluenced  by  the  deterministic 
attitude  which  Merkel  supports.  ^ 

Merkel's  view  of  the  philosophy  of  punishment  is 
represented  and  developed  by  M.  Liepmann.-  Like 
Merkel  ^  he  sees  no  incompatibility  between  punish- 
ment as  retribution  and  for  its  effect  upon  the  individual 
("Zweckstrafe").  The  incompatibility  would  apply 
only  as  against  a  view  which  determined  the  treatment 
of  criminals  according  to  their  menace  to  society.  He 
likewise  finds  no  incompatibility  between  retribution 
and  determinism.'' 

The  penological  theory  of  social  disapproval  of  von 
Bar  ^  (b.  183G)  is  likewise  similar  to  the  position  of 
Merkel. 

2:  Schmidt.  Richard  Schmidt^  (b.  1862)  is  the 
author  of  an  "Allgemeine  Staatslehre."     The  problem 

^  "Vergeltungsidee  und  Zweckgedanke  im  Strafrecht"  ("Hinter- 
lassene  Fragm.,"  II,  2,  pp.  687-723,  692,  710,  716-720.  "Lehrbuch," 
pp.  72-78.  See  a\so Berolzheimer,  "Die  Entgeltung  im  Strafrechte," 
pp.  97  99,  103,  139. 

2  "Einleitung  in  das  Strafrecht.  Eine  Kritik  der  Kriminalistischen 
Grundbegriffe,"  Berlin  1900.  See  a\so Liepmann  ("Z.  f.  g.  Str.,"  Vol. 
XVII,  pp.  691  seq.).  Aho  Berolzheimer,  "Die  Entgeltung  im  Straf- 
rechte," pp.  99,  151  scc]. 

3  "Einleitung  in  das  Strafrerht,"  i)p.  196-212:  "Die  Aufgaben 
der  Strafe,"  p.  196. 

*  "Einleitung  in  das  Strafrecht,"  pp.  197-204,  204. 

^v.  Bar,  "Geschichte  des  Deutschen  Strafrechts  und  der  Straf- 
rechtstheorien," Berlin  1882,  pp.  311  seq.,  especially  pp.  3J6,  323, 
327;  "Probleme  des  Strafrechtes,"  an  address,  Göttingen  1896. 
See  a\so Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  pp.  151  seq. 

'  For  his  views  on  penology  favoring  the  princijjle  of  general  pre- 
vention, see  Rich.  Schmidt,  "Die  Aufgaben  dc-r  Strafrechtspflege," 
I.(i|./iK  1S95.  See  also  Berolzheimer,  "Die  E.iilgflt ung  im  Straf- 
re(  lite,"  jip.  155  scq. 


§50]  RECENT  SURVEYS  451 

of  the  origin  of  the  State  he  regards  as  insoluble  in  so 
far  as  the  attempt  to  trace  a  systematic  evolution  of 
the  oldest  forms  of  alliance  has  failed.  But  the  problem 
as  to  the  conditions  which  lead  to  the  establishment  of 
the  State  may  be  answered  substantially  as  follows: 
"One  may  regard  a  governmental  association  as  arising 
whenever  a  group  of  men,  acting  in  the  main  as  a  body, 
dispose  of  their  common  interests  based  upon  their 
communal  life.  The  State  is  thus  independent  of  the 
family  and  the  clan."  The  functions  of  the  State 
cannot  be  defined  in  explicit  principles.  The  general 
problems  of  welfare  fall  but  in  subsidiary  manner  within 
the  sphere  of  the  activity  of  the  State;  the  maintenance 
of  security  belongs  to  it  primarily,  and  with  the  prece- 
dence of  the  State  as  against  individuals  and  groups. 
The  functions  of  the  law  are  "the  consolidation  and  regu- 
lation of  human  cultural  interests  as  furthered  by  the 
intercourse  of  members  of  society." 

The  scientific  study  of  the  origin  of  the  law  has  de- 
cided limitations;  observation  shows  that  the  legal 
norms  gradually  emerge  from  "the  primitive  manifes- 
tations of  men,"  and  become  differentiated  from  the 
norms  of  religion,  custom  and  morality.  It  may  be  said 
that  "the  law  as  a  whole  is  the  average  standard  of  legis- 
lation which,  through  the  public  guaranty  of  the  State, 
becomes  an  established  part  of  the  morality  and  cus- 
toms of  the  people."^  Yet  this  need  not  apply  to  indi- 
vidual legislative  acts. 

3:  Paulsen.  For  present  interests  Paulsen's  (b.  1846) 
"System  der  Ethik"  is  the  most  important  of  his 
writings.^    To  Paulsen,  welfare  is  "the  supreme    good, 

1  "Allgemeine  Staatslehre,"  Vol.  I,  pp.  116-121,  121-123,  122, 
145-156,  167,  168,  170,  238  seq. 

^"System  der  Ethik  mit  einem  Umriss  der  Staats-  und  Gesell- 
schaftslehre," 2  vols.,  sixth  edition,  Stuttgart   1903.      (I  cite  from 


452  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

the  ultimate  point  of  reference  of  all  judgments  of 
value  of  human  relations,  and  at  the  same  time  the 
ultimate  goal  of  the  normal  will."  But  wherein  does 
welfare  or  the  supreme  good  consist?  Two  views  are 
possible,  the  hedonistic  or  the  dynamic.  "The  former 
regards  pleasure  as  the  supreme  good ;  the  latter  makes 
it  an  objective  perfection  of  one's  nature  and  of  one's 
functional  efihciency."  Paulsen  advocates  a  dynamic 
view  of  ethics.  The  most  general  formula  of  this  posi- 
tion makes  the  goal  of  endeavor  of  every  living  being 
the  normal  development  of  its  functional  efficiency  as 
determined  by  its  nature.  In  agreement  with  Aris- 
totle happiness  or  welfare  appears  as  "the  realization 
of  all  virtues  and  capacities,  and  particularly  those  of 
the  highest  types." 

Paulsen  assumes  the  freedom  of  the  will  essentially 
in  the  sense  of  Spinoza  and  Kant.  "The  freedom  of  man 
is  the  dominance  of  his  rational  nature,  and  the  slavery 
of  man  is  the  dominance  of  his  animal  desires."  The 
dynamic  and  teleological  ethics  of  Paulsen  may  be  termed 
a  more  thorough  elaboration  and  refinement  of  social 
utilitarianism.  Justice  is  a  virtue  and  an  ethical  duty. 
The  general  formula  of  the  duty  of  justice  is  when  posi- 
tively worded,  "Observe  and  protect  the  law";  or  in 
another  version:  "Do  no  wrong,  and  so  far  as  lies  in 
your  power,  do  not  permit  wrong  to  be  done."  From 
the  idea  of  the  welfare  of  the  community,  there  follows 
the  duty  of  the  comnuinity  to  provide  for  its  self-preser- 
vation; and  (his  justifies  the  application  of  legal  coer- 
cion. The  i)urp()se  of  punishment  is  to  maintain  peace 
and  security  in  the  community. 

The  forms  of  the  conunuiial  life  are  the  famiK,  socia- 

llic  fifdi  cdilioii,  i'.KIO.)  Also  "ICiiilcit  iini;  in  <lit>  I'liilosopliic," 
clovcnlh  aiul  twelfth  cflilioii,  Stuttgart  1904:  "Philosophia  Militaiis 
gCKCii  Klcrikalisnuis  und  Natiiralibmus,"  five  essays,  Berlin  1901. 


§  50]  RECENT  SURVEYS  453 

bility,  and  friendship,  the  economic  Hfe  and  society, 
and  the  State.  By  society,  Paulsen  understands  "the 
spontaneously  arising  organization  of  the  people  for 
economic  purposes;  the  co-operative  production  of  com- 
modities and  the  exchange  thereof  form  the  chief  object 
of  its  operations."  The  State  is  the  organization  of  the 
people  into  a  supreme  unity  of  will,  authority  and  law. 
The  purpose  of  the  State  is  to  further  the  life  interests 
of  the  people  in  their  external  relations,  and  the  pres- 
ervation of  an  inner  peace;  and  in  support  of  the  free 
activity  of  the  individual,  the  fostering  of  culture  and 
of  material  welfare. "^ 

4:  Baumann.  Joh.  Julius  Baumann  ^  (b.  1837) 
regards  the  problem  of  the  philosophy  of  law  as  the 
establishment  of  the  ultimate  principles  comprised  under 
the  term  law.  This  problem  cannot  be  solved  by  a 
comparative  study  of  law,  for  such  comparison  affords 
merely  a  formal  conception  of  law.  The  object  of  the 
legal  philosopher  is  to  determine  whether  there  exists 
a  general  equitable  content  of  law,  how  such  is  formed, 
and  for  what  reasons  it  is  not  everywhere  the  same. 

"The  institutions,  which  the  free  association  of  men 
with  one  another  makes  possible  and  necessary  for  the 
development  of  such  communal  life,  constitute  the  law; 
or  otherwise  expressed,  the  law  is  the  underlying  con- 
ception of  the  demands  between  one  man  and  another 
which  are  indispensable  to  freedom  of  intercourse." 

1  "System  der  Ethik,"  I,  pp.  209-235,  235-269,  235,  253,  424- 
442,  442;  II,  128-163,  12S,  134,  134-139,  314-512,  512  seq.,  323, 
512-516. 

"The  writings  oi  Baumann  here  pertinent  are:  "Sechs  Vorträge 
aus  dem  Gebiete  der  Praktischen  Philosophie,"  Leipzig  1874  (III, 
IV,  and  V,  pp.  46-142).  "Handbuch  der  Moral  nebst  Abriss  der 
Rechtsphilosophie,"  Leipzig  1879.  "Realwissenschaftliche  Begrün- 
dung der  Moral,  des  Rechts  und  der  Gotteslehre,"  Leipzig  1898. 


454  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

All  law  has  reference  to  the  community.  Baumann 
proceeds  to  consider  the  most  important  legal  relations  — 
such  as  those  resulting  from  property,  incorporeal  own- 
ership, contract,  marriage,  inheritance  —  which  repre- 
sent the  more  individualistic  rights  in  which  the 
individual  is  uppermost,  together  with  those  phases  of 
the  law  in  which  the  interests  of  society  dominate.  The 
State  appears  as  the  most  general  legal  corporation; 
and  its  essential  characteristics  are  a  permanent  pur- 
pose, fixed  institutions,  exemption  from  change  in  mem- 
bership, and  "the  free  activity  of  the  individual  or  of 
particular  groups  of  individuals,  but  ever  within  the 
law  and  thus  in  subordination  to  the  whole."  If  in 
consideration  of  these  attributes  the  State  is  termed 
an  organism,  care  should  be  taken  that  the  analogy 
produces  no  false  impression.  "The  State  must  be 
conceived  as  composed  of  conscious  and  free  men,  and 
not  as  an  organic  natural  product ;  for  of  the  fundamental 
nature  of  organic  processes  —  so  far  as  they  are  not 
the  results  of  mechanical  laws  • —  we  know  nothing,  and 
tend  to  ascribe  them  by  analogy  to  human  action."^ 

5:  Schuppe.  From  an  ethical  position  W.  Schuppe 
(b.  1836)  concludes  that  "it  is  through  their  inner  nature 
that  men  feel  the  need  of  communal  life  and  are  designed 
to  live  together."  If  ethical  requirements  were  volun- 
tarily met,  if  perfect  insight  and  love  prevailed,  law 
and  legislation  would  be  superfluous.  But  as  men  are 
ever  morally  imperfect,  government  and  law  are  neces- 
sary instituti(Mis.^  "Law  is  the  will  which  arises  from 
the  judgment  of  the  concrete  consciousness  as  such,"^ 

»"Handbuch  (k-r  Moral,"  pp.  372,  374-391,  3,S:5,  392-423,  424-445, 
426  scq. 

*  "Grundzügc  der  I-.tliil<  mid  l\i(-litsphil()s()|)liic,"  pp.  270,  270  seq., 
3K2. 

'  "Dif  S(iczifisclic  Differenz  im  BepjrifTo  des  RitIiIs,"  pj).  194 
i-<f|.      In  this  essay  ll  e  di^t  ir.ct  inn  Iielwcen  law  ar.d  I'lliics  is  upper- 


§  50]  RECENT  SURVEYS  455 

in  which  the  term  concrete  consciousness  is  the  concrete 
ego  of  the  individual  man.^  Schuppe  says  of  his  con- 
ception of  law  that  it  denotes  "the  inner  incentive  in 
all  legal  institutions,  and  does  not  present  a  bare  for- 
mulation of  the  content,  but  makes  the  material  realiza- 
tion dependent  upon  the  actually  existing  factors;  and 
thus  there  can  be  no  ideal  of  law  valid  for  all  times."^ 
A  legal  right  is  a  power,  and  finds  its  necessary  comple- 
ment in  duty.'  The  State  exists  for  cultural  and  eco- 
nomic interests.* 

most.  The  essay,  "Der  Begriff  des  Rechts,"  which  was  inspired  by 
Zitelmann's  "Irrtum  und  Rechtsgeschäft,"  deals  mainly  with  the 
will  in  its  relation  to  the  law. 

1  "Die  Spezifische  Differenz  im  Begriffe  des  Rechts,"  p.  168. 
See  also  "Der  Begriff  des  Subjektiven  Rechts,"  pp.  2  seq.,  5-8,  and 
"Das  Gewohnheitsrecht,"  pp.  17  seq. 

^  "Die  Spezifische  Differenz  im  Begriffe  des  Rechts,"  pp.  195  seq.; 
See  also  "Das  Gewohnheitsrecht,"  pp.  17-51. 

3  "Grundzüge  der  Ethik,"  pp.  292-294.  See  also  "Der  Begriff 
des  Subjektiven  Rechts,"  pp.  8-10. 

4  "Grundzüge  der  Ethik,"  pp.  292,  315-334,  384-389.  P.  292:  "A 
State  as  a  legal  institution  and  nothing  else  is  an  anomaly;  for  to 
desire  and  realize  law  in  the  narrower  sense  is  possible  and  justifi- 
able only  by  virtue  of  the  desire  to  make  real  that  which  is  the  source 
of  alllaw  —  namely,  the  cultural  mission  of  the  State."  P.  315  In 
addition  to  its  legal  function  the  State  has  the  positive  purpose  "of 
service  to  inherently  ethical  ends."  P.  318:  The  ethical  will  is 
absolute  and  the  governmental  will  but  relative  and  dependent. 
P.  320:  "The  State  stands  for  the  furthering  of  the  moral  and  intel- 
lectual perfection  of  each  individual  in  material  and  spiritual  rela- 
tions; its  interests  extend  to  the  highest  spiritual  as  well  as  material 
values." 

See  also  Schuppe,  "Rechtswissenschaft  und  Rechtsphilosophie," 
p.  234:  "The  goal  of  the  legal  will  is  limited  by  the  principles  of 
equality  and  individual  freedom,  and  as  well  by  racial  and  national 
character,  by  historical  vicissitudes  and  all  such  outer  conditions 
of  life  as  determine  the  trend  of  mental  evolution,  and  also  deter- 
mine what  in  one  situation  or  another  will  be  regarded  as  desirable 
to  welfare.  The  legal  norms  acquire  their  content  through  such 
external  factors." 


456  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

The  problem  of  punishment  is  in  the  last  analysis 
directed  to  the  question  of  the  justification  of  inflic- 
tion of  evil;  it  consists  "in  the  contradiction  between 
the  universally  recognized  presence  of  immorality,  to- 
gether with  the  injustice  of  inflicting  pain,  and  the  widely 
disseminated  and  traditional  sentiment  which  in  par- 
ticular cases,  requires  such  infliction  and  does  so  with  the 
appearance  of  justice  and  law."  The  infliction  of  pain 
appears  as  immoral  by  virtue  of  the  command  of  neigh- 
borly love;  and  yet  the  position  is  relatively  justified 
by  which  the  personality  should  only  be  valued  in  terms 
of  its  actual  accomplishment.  It  is  not  the  law  of  moral- 
ity, but  a  moral  sense  that  demands  the  punishment  of 
the  ofl^ender.  Freedom  is  a  condition  of  responsibility. 
What  deserves  to  be  punished  is  the  evil  disposition.^ 

§  5L  The  Influence  of  the  Principles  of  Evolution. 
1 :  Social  Aristocracy  ;  Nietzsche.  I  n  his  assertive  period 
consequent  upon  emancipation  from  Schopenhauer, 
Friedrich  Nietzsche  (1844-1900)  came  to  look  upon  the 
prevalent  Christian  morality  as  the  gospel  of  the 
decline,  decadence,  and  degradation  of  the  individual. 
Against  this  slave  or  herd  morality  Nietzsche,  under 
the  influence  of  Stirner  and  of  the  theory  of  evolution, 
set  up  the  morality  of  man  as  his  own  master,  of  the 
human  ego  standing  upon  its  own  footing.  The  self- 
assertion  of  the  individual  appears  characteristically 
in  a  striving  for  power — -"Wille  zur  Macht,"  the  will 
to   |ire\ail.2     The  goal  of  ethical  culture  is  a   breeding 

■"(IrundzÜRC  der  P:Lhik,"  pp.  ;?39-382,  349-361,  366  sea-,  370, 
376-378. 

'  "WhtrcviT  I  found  life  there  I  found  the  will  to  prevail,  and  even 
ill  the  will  for  service  I  found  the  will  to  be  inaslor.  .  .  .  And 
wherever  there  is  saerifire  and  service  and  affection  there  also  is  the 
will  to  he  master.  I?y  devious  paths  the  weaker  creeps  into  the 
castle,   and  even    iniD   the   heart    of   tlic   more   powerful  and   there 


§61]  PRINCIPLES  OF  EVOLUTION  457 

of  a  higher  type  of  man,  the  creation  of  a  super- 
man.^ At  the  close  of  the  ultra-democratic  nineteenth 
century,  Nietzsche  appeared  as  a  prophet  of  social 
aristocracy. 

Nietzsche  misapprehends  the  nature  of  ethics;  he 
regards  Christian  ethics  from  without,  and  not  in  its 
historical  setting.  His  argument  would  read:  Inas- 
much as  Christian  ethics  is  the  prevalent  ethics  and 
stands  for  asceticism,  and  as  asceticism  means  the  denial 
of  the  will  to  achieve  power,  which  in  turn  is  the 
suppression  of  individuality,  it  all  results  in  the  advocacy 
of  slave  or  herd  morality  and  in  the  checking  of  cultural 
progress.  To  this  Nietzsche  opposes  his  ethical  ideal, 
the  breeding  of  the  superman,  in  whom  will  be  repre- 
sented a  new  morality,  above  the  sphere  of  good  and 
evil,  which  shall  affirm  the  will  to  live  and  to  achieve 
power- — in  brief,  shall  affirm  the  autonomy  of  the 
individual,  through  which  shall  result  the  larger  human 
progress  mediated  by  the  breeding  of  the  superman. 
In  the  prevailing  ethics  Nietzsche  sees  only  the  denial 
of  life,  a  check  to  extreme  individualism,  and  ignores 
the  significance  of  ethics  as  a  dominant  cultural  force. 
His  emphasis  of  power  is  sound;  but  his  narrow  per- 
spective gives  it  a  false  development,  in  that  he  regards 
ethical  power  as  equivalent  to  austerity,  and  political 
force  as  equivalent  to  might.  The  evolution  of  history 
is  against  him. 

steals  power."  'Also  Sprach  Zarathustra,"  p.  167.  "Zur  Genea- 
logie der  Moral,"  pp.  397  seq.  "Der  Wille  zur  Macht,"  pp.  265  seq. 
"Nachgelassene  Werke,"  Part  II,  Vol.  XII,  pp.  101  seq. 

1  "Jenseits  von  Gut  und  Böse,"  pp.  233  seq.  "Götzendäm- 
merung," pp.  145  seq.  ''Also  Sprach  Zarathustra,"  pp.  16-18,  51, 
72,  287-313.  "Nachgelassene  Werke,"  Part  II,  Vol.  XI,  p.  131, 
No.  418;  Vol.  XII,  p.  188,  No.  403;  p.  205,  No.  437;  p.  209,  No. 
443. 


458  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

Alexander  Tille,  in  his  popular  scientific  book,  "Volks- 
dienst," ^  advocates  the  position  of  social  aristocracy 
as  against  socialism.  The  motto,  "A  like  v/age  for 
all,"  would  be  but  a  temporary  solution  for  existing 
inequalities.  "Natural  selection  is,  so  to  speak,  thor- 
oughly aristocratic."  "All  selection  is  aristocratic,  for 
no  one  chooses  to  perpetuate  the  worst."  "Men,  like 
animals,  are  by  inheritance  efficient  or  inefficient,  but 
efficient  and  inefficient  alike  develop  their  working 
capacity  through  social  means;  and  thus  he  who 
through  his  innate  efficiency  in  the  field  of  work  pro- 
duces more  than  another,  may  in  a  favorable  sense 
be  called  a  social  aristocrat,  and  the  condition,  in 
which  property,  influence,  and  power  are  dependent 
wholly  upon  service,  may  be  called  a  social  aristocracy." 
Social  aristocracy  leads  to  a  new  rank,  to  the  creation 
of  estates  of  performance. 

2:  Evolutionary  Monism;  Haeckel.  Ernst  Haeckel 
(b.  1834),  the  distinguished  zoologist  and  early  protag- 
onist of  evolution,  was  largely  influential  in  making 
Darwin's  teachings  available  to  Germany.  In  one  of 
the  later  chapters  of  "Die  Lebenswunder"  ^  he  applies 
the  doctrine  of  monism  to  all  realms  of  science,  to 
physics,  chemistry,  mathematics,  astronomy,  geology, 
biology,  anthropology,  psychology,  linguistics,  history, 
medicine,  psychiatry,  h>'gicne,  technology,  pedagogy; 
furthermore  to  ethics,  sociology,  politics,  jurisprudence, 
and    theology.     In    the    accompanying    note  ^    I    have 

'  "Volksflicnst."  By  a  social  aristocrat,  Anonymous.  Publisher, 
Tille,  Berlin  and  Leipzig  189:},  pp.  112  seq.,  110   133,  134   153. 

^  Pp.  r)3l  se(i. 

'The  ethics  of    monism  attemi)ls  to  sui)pl(Mnent  tiie  metaiihysicai 

foundations  of  morality  by  assuming  a  fric  will  and  an  inherent 

moral  conscif^usncss  on  the  basis  of  a  jilusiolotiical  (Mhics,  sui)i)orted 

li\'   the  l.ius  r)f  biology  in  general,  and   of  txoiulion    in   i),irt  iculir. 

I)ic    I.eijensvvuMdi  r,"    p.    .'JlS. 


§51]  PRINCIPLES  OF  EVOLUTION  459 

expressed  almost  literally  Haeckel's  position  so  far  as 
it  is  here  pertinent,  in  order  that  the  reader  may  form  an 
opinion  of  its  value.  Haeckel  predicts  a  new  future  for 
the  science  of  law  as  soon  as  legislation  shall  be  exclu- 
sively guided  by  reason.  This  position  does  away 
entirely  with  natural  law.  A  further  condition  to  the 
salvation  of  the  philosophy  of  law  is  the  acceptance  of 
determinism,  which  already  dominates  in  the  sociological 

Sociology  proceeds  monistically  by  referring  "the  laws  regulating 
society  to  the  natural  laws  of  heredity  and  selection."  "While 
in  social  intercourse  many  educated  men  still  hold  to  dualistic  pre- 
judices, how  little  truth  and  nature  are  'valued  in  our  refined  and  edu- 
cated society?'  How  much  deception  and  untruthfulness  determines 
standards  is  shown  conclusively  by  Max  Nordau  in  his  well-known 
book,  'Die  Konventionellen  der  Kulturmenschheit'  "  (Die  Lebens- 
wunder, pp.  548  seq.). 

Upon  monistic  politics  Haeckel  remarks  ("Die  Leben,"  p.  549): 
"Internal  politics  is  regulated  in  civilized  States  by  constitutions, 
and  external  politics  by  international  relations.  According  to  the 
monistic  view,  pure  reason  should  determine  issues  in  both  fields; 
the  mutual  relations  of  citizens  to  each  other  and  to  the  State  should 
be  regulated  by  the  same  ethical  laws  as  prevail  in  the  personal 
intercourse  of  one  citizen  with  another.  It  is  obvious  that  in  mod- 
ern civic  life  we  are  very  far  from  having  reached  this  ideal  goal. 
External  politics  still  shows  the  prevalence  of  brutal  self-seeking. 
Every  nation  is  thinking  only  of  its  own  advantage  and  devotes  the 
largest  share  of  its  resources  to  military  equipment,  while  interna' 
politics  is  for  the  most  part  under  the  dominion  of  the  barbarous 
prejudices  of  the  Middle  Ages.  Constitutional  struggles  are  directed 
to  a  contest  for  power  on  the  part  of  the  government  on  the  one 
hand,  and  of  the  mass  of  the  people  on  the  other.  Parties  are  ranged 
in  unprofitable  strife;  yet  the  vital  issue  is  not  as  to  the  forms  of 
government  but  as  to  whether  reason  prevails  in  their  operations. 
Whether  a  constitution  is  that  of  a  monarchy  or  that  of  a  republic, 
whether  aristocratic  or  democratic,  is  quite  subordinate  to  the 
main  issue,  which  is,  whether,  as  a  modern  civilized  country,  it  is 
spiritually  or  worldly  minded.  The  question  is  whether  it  shall  be 
ruled  under  the  theocratic  dominance  of  unreasoning  dogma  and 
clerical  control  or  under  the  rational  dominance  of  unreasonable 
laws  and  civil  rights."      ("Welträtsel,"  p.  11.) 


460  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

school  of  penology.  Speaking  of  desirable  reforms  in  eco- 
nomics and  law,  Haeckel  urges  that  legal  science  would 
be  advanced  by  the  study  of  biology.  Biology,  however, 
was  introduced  into  the  philosophy  of  society,  govern- 
ment, and  law  in  the  nineteenth  century,  without  contri- 
buting more  than  certain  analogies  to  nature  of  rather 
doubtful  value.  Is  it  not  plausible  that  familiarity  with 
economic  life  will  be  more  profitable  for  the  jurist  and 

The  postulate  of  monistic  jurisprudence  Haeckel  finds  wholly 
unsolved.  He  maintains  that  dualistic  principles  still  prevail.  "In 
this  field  likewise  the  dualism  of  Kant's  practical  reason  still  pre- 
vails with  unfortunate  consequences.  The  false  conceptions  of 
the  immortality  of  the  soul,  of  the  freedom  of  the  will,  and  of  a 
personal  God  as  lawgiver  and  supreme  Judge,  influence  legislation 
and  legal  minds,  and  determine  the  views  of  lawyers  as  well 
as  of  statesmen.  There  are  moreover  many  carefully  conserved 
vestiges  of  mediaeval  superstition  which  modern  legislation  merely 
transforms.  The  powerful  influence  of  religious  prejudice  and 
ecclesiastical  dogma  affects  the  situation  unfavorably.  We  are  con- 
stantly reading  in  newspapers  of  strange  decisions  of  the  higher  and 
the  lower  courts  which  are  amazing  to  any  sound  understanding. 
In  this  domain  improvement  will  ensue  only  when  jurists  are  thor- 
oughly grounded  in  anthropology  and  psychology  and  understand 
the  laws  of  life."     ("Die  Lebenswunder,"  p.  550.) 

L  n  speaking  of  the  harmony  of  monism,  Haeckel  in  conclusion 
(p.  557)  says  that  where  "a  fully  consistent  mode  of  thinking  applies 
the  highest  principles  to  the  totality  of  the  cosmos  —  including 
the  organic  and  the  inorganic  world  —  the  opposition  of  theism 
and  pantheism,  of  vitalism  and  mechanism,  will  dissolve,  and  the 
two  views  converge.  But  it  must  be  admitted  that  consistent 
thought  is  a  rare  phenomenon."  Haeckel  then  continues:  "Of  the 
reality  of  this  reconciliation  and  dissolution  of  opposing  views,  I 
am  more  and  more  fully  convinced.  The  insight  is  gaining  ground 
that  the  dualism  of  Kant  must  gradually  give  way  to  the  metaphys- 
ical monism  of  Goethe  and  the  growing  pantheistic  trend  of  thought. 
In  this  consummation  our  ideals  are  by  no  means  lost.  On  the 
contrary,  an  objective  view  of  the  world  shows  that  ideals  are  deeply 
rooted  in  human  nature.  While  we  cultivate  the  world  of  ideals 
in  art  and  poetry,  and  our  emotional  nature  finds  pleasure  in  their 
pursuit,  wi-'  ^till  retain  tlie  firm  conviction  that  tlie  world  of  reality 


§51]  PRINCIPLES  OF  EVOLUTION  461 

legal  philosopher  than  a  knowledge  of  biology?  And  one 
may  ask,  how  is  Haeckel's  demand  for  the  limitation  of 
egoism  in  the  relation  of  the  States  to  one  another, 
consistent  with  the  struggle  for  existence  and  the  theory 
of  selection? 

3:  Evolution  and  Socialism.  Haeckel's  proposal  to 
apply  the  teachings  of  Darwinism  to  political  economy 

can  only  be  truly  known  and  become  an  object  of  science,  by  the 
purely  rational  exercise  of  experience  and  thought.  'Wahrheit  und 
Dichtung'  will  unite  in  the  complete  harmony  of  monism." 

That  Haeckel's  views  have  been  the  subject  of  decided  protest 
is  familiar.  His  somewhat  contemptuous  opposition  and  judgment 
of  philosophical  dualism  and  the  sharp  polemical  tone  of  his  writings 
has  as  usual  brought  about  an  equally  keen  retort,  of  which  Paul- 
sen's "Philosophia  Militans"  (pp.  179  seq.)  may  be  cited  as  an 
example.  In  fact  Haeckel  is  a  fanatic,  and  fanaticism  is  always  intol- 
erant. If  Haeckel  were  conversant  with  the  history  of  philosophy, 
he  would  know  that  dualism  and  monism  were  opposed  to  one  another 
long  before  Kant,  and  that  in  general  views  of  the  world,  differences 
of  position  are  more  common  and  justifiable  than  in  the  exact 
sciences.  Paulsen  shows  that  the  absolute  certainty  which  Haeckel 
believes  he  possesses  in  regard  to  the  solution  of  the  "Riddle  of  Exist- 
ence" was  already  claimed  in  the  nineteenth  century  by  Hegel  in 
his  philosophical  system.  "There  is  but  a  slight  difference  between 
the  old  and  the  new  position.  In  Hegel's  monism  reality  is  conceived 
as  reason,  in  Haeckel's  monism  it  is  conceived  as  unreason."  "Phil- 
osophia Militans,"  p.  ISO:  "Haeckel's  true  purpose,  his  ultimate 
goal,  is  suggested  by  the  names  of  Bruno,  Spinoza,  Goethe.  He 
strives  to  attain  an  outlook  which  shall  present  life,  and  mental 
life,  not  as  something  in  reality  external,  foreign,  and  accidental, 
but  as  something  inherently  belonging  to  it,  as  the  reverse,  the 
inner  side  of  its  being.  Haeckel  really  wishes  to  say  that  every 
closed  system  of  material  processes  contains  a  system  of  spiritual 
processes;  all  things  are  by  nature  psychological.  .  .  .  This  is 
Haeckel's  real  meaning,  but  he  stops  at  the  very  approach  in  that 
he  speaks  of  the  souls  of  atoms  and  cells  but  has  not  the  courage 
to  follow  the  principle  of  analogy  thus  suggested  and  speak  as  well 
of  earth-souls  and  world-souls."  {Paulsen,  "Philosophia  Militans," 
pp.  189  seq.)  The  doctrine  of  universal  souls  was  proposed  by  Fech- 
ner  {See  Berolzheimer,  "System,"  Vol.  I,  pp.  119  seq.). 


462  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

and  sociology  has  been  followed  in  various  directions. 
The  collection,  "Natur  und  Staat,"  consists  of  prize 
essays^  (edited  by  H.  E.  Ziegler,  Conrad,  and  Haeckel) 
in  competition  upon  the  theme:  "What  may  we  learn 
from  the  principles  of  evolution  with  reference  to  the 
political   development  and  legislation  of  States?" 

Matzat,^  who  follows  Stammler  in  his  mode  of  approach 
to  the  problems  of  law,  explains  the  origin  and  mainte- 
nance of  law  as  "an  adjustment  of  objective  conduct  to 
a  foreign  will."  Accordingly  a  legal  relation  is  "a 
relation  of  mutual  adjustment  between  two  or  more 
persons,  in  which  a  part  of  the  conduct  of  the  first 
party  must  be  conditioned  by  the  will  of  the  second,  and 
a  part  of  the  conduct  of  the  second  party  by  the  will 
of  the  first."  He  defines  the  State  as  "a  community  of 
men  in  a  legal  relation  in  which  a  part  of  the  conduct 
of  all  members  thereof  is  conditioned  by  the  will  of  the 
individual  member,  and  a  part  of  the  conduct  of  the 
individual  is  conditioned  by  the  will  of  all  the  members, 
such  relation  not  being  subject  to  alterations  by  any 
foreign  will."  The  fundamental  functions  of  the  State 
are   protection   and   the  maintenance  of  the  law.     The 

'  These  prize  essays  bear  the  following  titles:  Heinrich  Matzat, 
"Philosophie  der  Anpassung,"  with  special  reference  to  law  and  the 
State;  also  an  Introduction  to  the  general  work,  "Natur  und  Staat," 
by  H.  E.  Ziegler,  Jena  1903.  A.  Ruppin,  "Darwinismus  und  Sozial- 
wissenschaft," Jena  1903.  Schallmeyer,  "Vererbung  und  Auslese 
im  Lebenslauf  der  Völker,"  a  sociological  study  on  the  basis  of  the 
newer  biology,  1903.  Hesse,  "Natur  urd  Gesellschaft,"  a  critical 
investigation  of  the  s-ignificance  of  the  tlcrry  of  descent  for  the  social 
life,  1904.  Ktirt  Michaelis,  "Prirzipien  der  Natürlichen  und  Sozialen 
Kntwickclungsgeschichte  des  Menschen,"  "Anthropological  and 
lilhnological  Studies,"  1904.  A.  Eleutheropidos,  "Soziologie,"  1904. 
As  announced  in  "Natur  und  Staat,"  Part  I,  InlrcMhirtion,  ]ip.  22- 
24,  the  remaining  \'olun.i's  are  as  >('t   unissued. 

2  "Philosophie  der  Arpassimg,"  pp.  131-190,  löf),  1G9,  207, 
2(ir),  :iOK,  309  .s((|.,  ;',0;',,  2S2  310,  308. 


§51]  PRINCIPLES  OF  EVOLUTION  463 

State  may  also  assume  other  functions.  To  what  extent 
it  may  proceed  is  determined  by  the  principle  of  "adjust- 
ment." "The  activity  of  the  State  is  decreasing  and 
must  decrease,  is  so  far  as  the  restriction  of  individual 
thought  and  desire  is  involved  (for  example,  in  the 
religious  domain).  It  increases  and  must  increase  so 
far  as  it  bears  upon  the  objective  conduct  of  men." 
Such  adjustment  is  the  natural  character  of  govern- 
ment. The  lowest  stage  of  adjustment  consists  in  the 
elimination  of  conflict.  "But  conflict  can  be  eliminated 
only  by  mutual  adjustment  of  one's  conduct  to  another's 
will,  and  another's  conduct  to  one's  own  will,  .and 
thus  ty  relations  of  adjustment  which  are  legal  relations." 

Arthur  Ruppin,  in  his  "Darwinismus  und  Sozial  Wissen- 
schaft," studies  the  four  principles  of  the  theory  of 
evolution  —  heredity,  adaptation,  natural  selection,  and 
sexual  selection,  — ^with  reference  to  their  application  to 
the  social  life  of  men.^ 

H.  E.    ZiEGLER  -   attempts   to  show   that    socialism' 

1  Here  belong  some  of  the  works  mentioned  in  §  44,  particularly 
Lilienfeld;  also  Schäffle's  essay,  "Über  Recht  und  Sitte  vom  Stand- 
punkt der  Soziologischen  Erweiterung  der  Zuchtwahltheorie," 
(in  "Avenarius,"  II,  1878,  pp.  38-67);  Otto  Amnion's  "Die  Gesell- 
schaftsordnung und  Ihre  Natürliche  Grundlagen,"  an  outline  of  a 
social  anthropology  for  the  use  of  all  educated  persons  interested 
in  social  problems,  Jena  1895,  third  edition,  Jena  1900;  Joh.  Speck, 
"Gesetz  und  Individuum.  Ein  Beitrag  zur  Individuellen  und  Sozialen 
Entwickelungsgeschichte  des  Menschen,"  Hanau  1904,  pp.  112- 
143.  This  attempts  to  apply  the  theory  of  evolution,  in  the  sense 
of  Goethe's  idealism  or  law  of  harmony,  to  the  study  of  government 
and  law. 

^"Die  Naturwissenschaft  und  die  Sozialdemokratische  Theorie, 
ihr  Verhältnis  Dargelegt  auf  Grund  der  Werke  von  Darwin  und 
Bebel."  This  is  also  a  contribution  to  the  scientific  criticism  of  the 
theories  of  current  social  democracy.    Stuttgart  1893. 

^  In  "Freie  Wissenschaft  und  Freie  Lehre,"  a  reply  to  an  address 
delivered  ii  Munich  by  Rudolf  Virchoio  on  "Die  Freiheit  der  Wis- 


464  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

finds  no  support  in  Darwinism.  He  compares  the 
several  fields  of  natural  science  with  the  social  demo- 
cratic theory,  particularly  with  regard  to  marriage, 
struggle  for  existence,  property,  and  the  State. 

Otto  Ammon  ^  also  opposes  socialism  from  the  po- 
sition of  Darwinism.  He  emphasizes  the  social-aristo- 
cratic value  of  the  several  classes  of  society,  which  value, 
the  socialistic  regime  would  destroy .^  "The  existence 
of  classes  continues  the  work  of  natural  selection  in  man 
and  establishes  a  natural  improvement  of  the  species 
in  Darwin's  sense."  The  educated  classes  should  oppose 
social  democracy  "because  the  dominance  of  the  masses 

senschaft  im  Modernen  Staat,"  Stuttgart  1S7S,  pp.  9-50,  .51-69,  Ernst 
Haeckel  outlines  the  principles  of  the  theory  of  evolution,  and  then 
replies  to  Virchow's  attack  upon  the  socialistic  character  of  the 
doctrine  of  evolution,  and  particularly  of  the  theory  of  selection. 
"Darwinism  is  anything  but  socialistic,"  is  his  contention  (pp. 
73,  70-77). 

^  "Der  Darwinismus  gegen  die  Sozialdemokratie.  Anthropolo- 
gische Plaudereien,"  Hamburg  1891.  (A  collection  of  short  essays.) 
"Die  Gesellschaftsordnung  und  Ihre  Natürlichen  Grundlagen, 
Entwurf  einer  Sozial-Anthropologie  zum  Gebrauch  für  alle  Gebilde- 
ten, die  Sich  mit  Sozialen  Fragen  Befassen,"  Jena  1895,  second 
edition  1S96  (third  edition  1900).  See  also  in  this  connection 
Ferd.  Tönnies,  "Jahresbericht  über  Erscheinungen  der  Soziologie 
aus  den  Jahren  1895  und  1896"  ("Archiv  für  Systematische  Philoso- 
phie"), Vol.  IV,  1S98.  pp.  237  239. 

^"Dcr  Darwinismus,"  etc.,  p.  74:  "Social  division  is  a  natural 
division  based  upon  the  Darwinian  law  of  natural  selection  in  the 
struggle  for  existence."  P.  76:  "If  Darwin's  doctrine  is  not  an  idle 
invention  then  the  fourth  estate  can  never  attain  leadership,  and 
certainly  not  supremacy  in  human  society,  despite  such  endowments 
as  they  may  have;  and  if  the  fourth  estate  were  ever  to  triumph 
by  means  of  ap])lying  their  crude  strength,  the  success  would  be  but 
temporary."  Pp.  97  102:  "Panmixie  as  the  op[)osite  of  natural 
selection."  "Die  Gesellschaftsordnung  und  Ihre  Natürlichen  Grund- 
lagen," |)[).  52-66,  on  the  social  mechanisms  for  the  natural  selection 
of  individuals;  pp.  90-96,  104-127,  156-163,  177-186,  363  seq., 
370  390. 


§51]  PRINCIPLES  OF  EVOLUTION  465 

is  irreconcilable  with  the  natural  principles  of  every 
order  of  society,  and  would  lead  to  the  destruction  of 
all."  "The  law  of  natural  selection  is  operative  every- 
where, for  example,  in  the  army,  in  official,  commercial, 
and  laboring  classes."  "The  general  conclusion  is  that 
a  true  social  and  national  politics  cannot  issue  from 
the  masses,  but  only  from  the  educated  classes."* 
On  the  other  hand,  Enrico  Ferri,^  an  Italian  follower 
of  Karl  Marx,  attempts  to  show  that  socialism  is  not  in- 
consistent with  Darwinism  in  that  the  law  of  the  struggle 
for  existence  may  also  be  operative,  though  weakened 
in  force  in  the  socialistic  State.  At  best  his  arguments 
lead  to  the  conclusion  that  there  is  no  essential  relation 
between  socialism  and  Darwinism. 

Under  the  title,  "Natürliche  Grundlagen  des  Rechts 
und  der  Politik,"  a  contribution  to  the  philosophical 
and  critical  appreciation  of  the  theory  of  evolution,^ 
L.  KuHLENBECK  prcseuts  a  condensed  survey  of  the 
natural  theory  of  descent  of  Lamarck,  Goethe,  Geoff roy, 
St.  Hilaire,  Darwin,  Weismann  and  Haeckel.  He 
accepts  the  theory  of  evolution,  though  not  the  material- 
ism often  associated  with  it.  He  applies  biological 
laws  to  government  and  society,  in  the  course  of  which 
he  considers  the  history  of  the  evolution  of  society  and 
of  the  origin  of  the  State  in  general,  with  special  con- 
sideration of  the  racial,  class,  and  caste  elements  in  the 
State,  and  of  the  further  development  of  special  classes, 
such  as  the  professions,  the  clergy,  and  the  learned 
classes,    etc.     He    considers    the    significance    of    racial 

1  "Die  Gesellschaftsordnung,"  etc.,  pp.  94,  372,  377,  388. 

2  "Sozialismus  und  Moderne  Wissenschaft"  (German  translation, 
Kurella),  1895,  pp.  11,  27,  30,  35-37,  83.  See  also  Gumplowicz, 
"Geschichte  der  Staatstheorien,"  pp.  496  seq. 

3 "Thüringische  Verlags-Anstalt  Eisenach  und  Leipzig"  [1905J, 
pp.  5-54,  57  seq.,  170-222,  223  seq.,  232. 


4CG  SCCIOLOGICAL  PHILOSOPHIES    [Cn.  VII 

stock  as  a  factor  cf  internal  political  development,  and 
of  such  forces  as  tradition,  social  adjustment,  and  the 
bearing  of  biological  laws  upon  individual  fields  of  the 
law  • —  such  as  trial  procedure,  punishment  as  a  means 
cf  social  selection,  etc.  Throughout,  the  treatment 
emphasizes  the  place  of  economic  forces  in  the  political 
careers  of  nations. 

Kuhlenbeck  is  opposed  alike  to  socialism  with  its  ultra- 
democratic  and  retrogressive  tendencies,  and  to  the 
materialism  represented  by  capitalistic  interests.  He 
advocates  a  social-aristocratic  idealism,  "a  conscious- 
social  aristocracy  that  shall  so  regulate  the  struggle  for 
existence,  particularly  the  selection  among  nations, 
that  a  nobler  type  of  mankind  may  emerge." 

§  52.  Class  mid  State.  Viewing  retrospectively  the 
stages  of  development  of  legal  philosophy  from  the 
close  of  the  Middle  Ages  to  the  present,  we  observe  a 
continuous  process  of  emancipation  gradually  brought 
to  completion.  The  Reformation  achieved  the  libera- 
tion of  State  supremacy  from  the  fetters  of  ecclesiastical 
dominance  and  the  papal  throne.  The  Tyrannomachs 
abolished  the  civic  enslavement  by  an  appeal  to  reason 
and  to  Scriptural  faith  - — •  at  once  rationalistic  and 
tl.eological;  later,  through  the  mediation  of  the  spirit 
of  Rousseau  and  the  Encyclopedists,  the  great  French 
Revolution  swept  away  desi^otism,  and  paved  the  way, 
in  republics,  for  the  rule  of  the  middle  classes,  and  in 
otb.er  governments,  for  the  j^rosperity  of  the  third  estate 
undc-r  the  beneficent  regime  of  an  enlightened  abso- 
lutism. Of  similar  im])ort  were  the  efforts  of  Adam 
Smith  in  behalf  of  economic  freedom,  and  of  Kant  in 
behalf  of  the  "Rechtstaat,"  the  State  as  the  embodi- 
ment of  law.  Stc])  by  step  the  third  estate  reached  the 
position  of  political  sui)remacy  and  economic  control 
under  legal  reguhilion  of  ])rivatc  interests,  which,  while 


§52]  CLASS  AND  STATE  C67 

formally  proclaiming  the  freedom  of  the  laboring  classes, 
actually  favored  their  economic  subjection.  At  this 
juncture  the  fourth  estate  came  to  its  own.  The  labor- 
ing classes  agitated  for  an  economic  emancipation  to 
be  attained  under  the  red  badge  of  communism  and 
socialism.  In  the  closing  quarter  of  the  nineteenth 
century  this  last  great  act  of  emancipation  was  accom- 
plished, and  with  its  accomplishment  we  approach  a 
new  and  far-reaching  development. 

The  history  of  such  movements  never  presents  a 
radical  break  with  the  old  and  an  immediate  assimila- 
tion of  the  new;  transitional  conditions  ever  intervene 
in  which  tie  vestiges  of  the  period  meeting  its  decline, 
persist  side  by  side — ^  and  at  times  in  sharp  contrast  — 
with  the  ^rst  beginnings  of  the  new.  Nature  never 
advances  by  leaps  and  bounds.  Such  a  period  of 
transition,  in  which  the  symptoms  of  the  decline  of  the 
older  and  of  the  onset  of  the  newer  ideas  are  evident, 
still  prevails. 

The  movement  of  emancipation  of  the  last  century 
was  not  limited  to  the  liberation  of  the  great  classes 
that  suffered  most  from  mediaeval  oppression.  When 
we  observe  that  in  the  course  of  four  centuries  the 
temporal  power  was  emancipated  from  the  spiritual 
power,  and  the  civic  estates  from  despotism,  and  the 
laboring  classes  from  the  capitalistic  yoke,  we  equally 
note  that  the  emancipation  was  always  that  of  classes 
as  such.  It  is  true  that  with  the  liberation  of  a  given 
class  the  individual  members  thereof  also  were  set 
free,  but  the  movement  was  centered  upon  the  over- 
throw of  the  class  burden,  leaving  the  individual  within 
the  class  in  complete  dependence.  A  clear  example 
thereof  is  afforded  by  the  course  of  social  democracy, 
which  imposes  upon  its  adherents  a  discipline  of  such 
severity,   and    demands    of    the    individual    such    large 


468  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

sacrifices  in  behalf  of  class  interests,  as  would  make 
every  form  of  governmental  or  capitalistic  paternalism 
seem  mild  in  comparison.  The  masses  never  really 
attained  true  freedom;  they  merely  got  rid  of  one 
burden  to  assume  another.  The  change  induced  a 
feeling  that  the  oppression  was  gone,  but  in  reality  it  was 
only  that  the  yoke  had  been  shifted.  The  emancipation 
of  the  classes  had  yet  to  find  its  complement  in  the 
emancipation  of  the  individual.  The  classes  concerned 
form  a  mere  collectivity  of  men,  constituting  not  a 
political  nor  an  economic,  but  merely  a  social  class, 
sharing  the  same  real  or  apparent  restrictions. 

Another  phase  of  accomplished  emancipation  is  that 
relating  to  the  status  of  the  Jews.  This  began  in  the 
last  quarter  of  the  eighteenth  century,  but  was  formally 
completed  in  Germany  only  by  the  enactment  of 
1848  and  the  imperial  law  of  July  3,  1869,  proclaim- 
ing the  civic  and  political  equality  of  all  religious 
confessions. 

\t  present  the  emancipation  of  woman  is  coming  to 
the  front.  The  claim  seems  a  just  one  that  such  women 
as  do  not  seek  or  find  the  possibility  of  marriage  should 
have  open  to  them  a  larger  number  of  callings  and 
intellectual  opportunities.  Under  the  influence  of  the 
feminist  movement  the  legal  position  of  the  married 
woman  has  been  decidedly  improved  in  the  German 
code.  While  the  husband  remains  the  acknowledged 
head  of  the  family,  the  wife  enjcns  co-ordinate  rights. 
She  is  protected  against  abuses  of  the  husband's  au- 
thoritN  ;  and  her  rights^  as  a  wife  and  a  widow  are 
safeguanlcd.- 

■  Particularly  laws  conceniiiip;  education:  "Parent's  control"  of 
§5  ](i2C),  l(i,S4  seq.,  of  the  R(iB,  instead  of  the  "paternal"  control 
dfrivc<l  from  Roman  law.     See  also  §§  i;5r)6  seq.,  Ilidf)   \'.\7\. 

»Sec,  for  instance,  §§  1357,  Part  II,  1391-1394,  MOÜ  BGB. 


§521  CLASS  AND  STATE  469 

The  woman's  movement  likewise  aims  to  improve  the 
poHtical  status  of  women,  demanding  that  they  shall 
have  like  political  rights  with  men.  When  thus 
comprehensively  expressed,  the  demand  cannot  be 
conceded  —  and  that  for  historical,  political,  and  practi- 
cal reasons:  in  the  first  place,  because  so  tremendous  a 
change  as  that  from  political  absence  of  rights  to  politi- 
cal equality  would  violate  every  principle  of  historical 
evolution;  secondly,  because  at  present  the  granting  of 
political  rights  to  women,  in  view  of  the  preponderance 
of  the  laboring  classes,  would  mean  an  enormous 
strengthening  of  the  political  influence  of  these  classes, 
which,  as  things  are,  is  already  unduly  strong;  finally, 
because  the  great  majority  of  women  have  no  interest 
in  public  affairs,  and  by  virtue  of  their  physiological 
and  psychological  endowment,  and  of  their  relations  to 
the  family,  naturally  have  a  larger  inclination  and 
understanding  for  family  cares  and  the  household  than 
for  questions  of  general  interest.  On  the  other  hand  it 
is  not  justifiable  to  exclude  a  woman  pursuing  a  pro- 
fession from  political  life,  nor  desirable  to  deny  the 
feminine  mind  a  participation  in  public  affairs.  Practi- 
cable proposals  are  more  likely  to  be  brought  forward 
as  soon  as  the  general  political  development  will  have 
advanced  from  the  present  transitional  stage  to  a  clearer 
view  of  the  situation. 

An  offshoot  of  the  general  "woman's  movement"  is  that 
for  the  abolition  of  the  "white  slave"  traffic.  It  may  be 
admitted  that  every  form  of  prostitution  indicates  a 
cultural  retrogression.  But  for  many  reasons  it  seems 
difficult  to  avoid  the  toleration,^  though  not  the  official 
recognition,  of  prostitution.  The  "abolitionists"  may 
well   limit  their  war  against   prostitution  to  social  in- 

^Berolzheimer,  "Die  Entgeltung  im  Strafrechte,"  pp.  168,  495- 
500,  and  the  bibliography  on  p.  483. 


470  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

fluences,  and  in  this  way  are  likely  to  produce  a  whole- 
some effect.  By  advocating  legislative  regulation  the 
movement  has  conducted  a  successful  campaign  against 
the  "white  slave"  traffic.^ 

A  further  outcome  of  the  movement  for  the  emanci- 
pation of  woman  is  the  agitation  for  an  improved  social 
status  for  children  born  out  of  wedlock.  It  proceeds 
upon  the  humanitarian  sentiment  that  condemns  the 
social  branding  of  these  innocent  victims;  it  also  urges 
the  practical  consideration  that,  as  experience  shows,  the 
mothers  of  illegitimate  children,  as  well  as  the  girls 
thus  born,  are  frequently  led  into  prostitution;  while 
statistics  show  that  illegitimate  children  furnish  the 
largest  percentage  of  criminals.  In  fact  there  seems  no 
reason  why  illegitimate  children  in  general,  or  at  least 
in  cases  where  the  mother  is  faithful  to  one  man,  should 
not  socially  and  legally  be  given  such  position  as  is 
now  granted  in  general  to  the  mother  and  her  offspring. 
The  words  of  the  German  code  read:  "An  illegitimate 
child  has,  in  relation  to  the  mother  and  to  the  mother's 
relatives,  the  same  legal  status  as  a  legitimate  child."  ^ 

The  great  process  of  emancipation  of  the  laboring 
classes  is  today  substantially  accomplished,  but  prob- 
lems of  detail   remain.     Social  democracy  has  brought 

^  See  §  48  of  the  laws  of  the  German  Empire  upon  emigration, 
June  9,  1897.  See  also  Berolzheimer,  "Die  Entgeltung  im  Straf- 
rechte," pp.  30,  483,  499,  and  the  bibliography  there  cited. 

"^Berolzheimer,  "Die  Entgcltung  im  Strafrechte,"  \).  .WO.  Also 
Shakespeare,  King  Lear  1,2:  — 

"Why  brand  they  us 
With  bnso?  with  baseness?  bastardy?  base 
Who,  in  I  lie  lusty  stealtli  of  nature,  take 
More  composition  and  fierce  quality 
Than  doth,  within  a  dull,  stale,  tired  bed, 
Go  to  the  creating  a  whole  tribe  of  fops, 
Got  'tween  asleep  and  wake?" 


§52]  CLASS  AND  STATE  471 

to  the  polls  a  body  of  no  less  than  three  million  voters. 
It  requires  a  bugle  blast  to  reach  this  enormous  army 
of  recruits.  Among  so  many  leaders  dissensions  are 
inevitable;  yet,  despite  factions  and  the  differences  of 
the  older  and  the  newer  social  democracy,  there  is  a 
practical  unanimity  of  sentiment  among  its  leaders. 
This  applies  not  alone  to  Germany;  the  international 
character  of  socialism  is  now  more  marked  than  in  the 
days  of  Marx  and  Lassalle.  It  has  affected  the  economic 
interests  of  middle  Europe  and  North  America,  and 
recently  those  of  Russia.  The  socialistic  labor  party 
is  strongly  asserting  itself  in  behalf  of  the  establishment 
and  extension  of  its  economic  and  political  position. 
The  dream  of  a  Utopia  is  giving  way  to  the  attainment 
of  an  effective  direction  of  government,  economics,  and 
the  law  in  the  interests  of  the  laboring  classes.  Organ- 
ized labor  is  demanding  and  receiving  a  share  in  the 
government;  in  France  it  is  represented  by  a  member 
of  the  ministry ;  in  Germany  it  has  many  representatives 
in  the  Reichtstag,  and  is  represented  as  well  in  govern- 
mental and  municipal  counsels.  In  the  United  States, 
in  England,  in  Belgium,  France,  Germany,  powerful 
labor  unions  protect  the  economic  interests  of  the 
laboring  classes.  Such  legislation  as  insurance  against 
accident,  sickness,  and  incapacity,  indicates  the  scope 
of  the  m.easures  now  adopted  for  the  protection  of  labor. 
The  same  applies  to  laws  for  the  improvement  of  the 
hygienic  condition  of  the  laboring  classes,  the  erection 
of  homes  for  workingmen  in  healthful  locations,  with 
proper  sanitary  equipment,  of  Sanatoriums,  and  recrea- 
tion homes.  Sanitary  conditions  in  factories  and  work- 
shops are  insisted  upon.  There  are  laws  that  prescribe 
safety  devices  to  eliminate  accidents;  insurance  laws 
that  protect  children,  pregnant  and  nursing  women; 
factory  inspection  that  secures  the  observance  of  laws 


472  SOCIOLOGICAL  PHILOSOPHIES    [Ch.  VII 

and  ordinances  and  minimizes  abuse:  and  if,  despite 
these  provisions,  the  laboring  classes  believe  that 
they  have  occasion  for  dissatisfaction,  they  threaten 
or  declare  a  strike  or  boycott,  and  do  not  hesitate 
to  intimidate  by  demonstration  and  sympathetic 
strikes. 

Reviewing  this  general  state  of  affairs  from  an  un- 
prejudiced outlook,  one  may  reach  a  critical  estimate 
of  the  social  democracy  of  the  present.  The  State  of 
the  future  —  whether  as  a  consummation  of  hope  or 
of  fear- —  is  but  a  pretext,  or  at  most,  a  point  of  appeal 
for  agitation.  Socialism  is  essentially  the  party  of 
labor,  strenuously  representing  the  political  interests  of 
the  laboring  classes.  The  gains  of  socialism  are  due 
to  its  enlistment  of  the  industrial  workers  and  of  the 
portions  of  the  population  socially  and  economically 
afifiliated  with  them.  It  appeals  to  the  agricultural 
laborers,  to  the  overworked  and  underpaid  employees. 
Socialism  has  become  a  significant  political  force  as  the 
platform  of  a  radical  party;  as  such  it  attracts  bright 
and  energetic  leaders  of  the  intellectual  type,  who 
would  not  be  drawn  to  it  as  the  representatives  of 
labor  interests. 

These  considerations  suggest  the  future  importance 
of  socialism  and  the  position  which,  in  their  own  interests, 
the  ruling  classes  must  assume  towards  it.  It  will  be 
conceded  that  mere  labor  is  justified  in  advancing  its 
special  class  interests  with  all  legally  legitimate  and 
socially  available  measures.  By  9,0  doing  it  advances  the 
interests  of  civilization;  it  undertakes  to  com^olcte 
tlic  (■nian(i])ati()n  of  tlu^  fourth  estate,  and  to  outline 
the  ])roi)('r  status  of  the  working  classes  in  the  State 
of  the  future,  which  will  bo  organized  on  the  biisis  of 
class  inlercsls.  It  is,  howcA'cr,  a  shortsighted  view  of 
affairs    to    inh  1  picl    llu;    i)osition    of   social    ethics    and 


§52]  CLASS  AND  STATE  473 

social  reform,  as  is  now  commonly  done  by  professional 
writers,  as  representing  the  special  interests  of  labor 
alone.  On  the  theoretical  side  economics,  sociology, 
and  political  economy,  and  on  the  practical  side  legis 
lation  and  administration,  should  understand  the  pur- 
poses and  motives  of  the  socialistic  movement,  and 
shape  their  policies  accordingly.  The  socialism  of  today 
is  the  partisan  representation  of  the  class  interests  of 
the  fourth  estate,  and  of  the  wage  earner  in  particular. 
As  such  it  considers  the  legitimate  class  interests  of 
labor;  under  these  circumstances  it  is  no  less  important 
that  the  professional  and  commercial  classes  shall  be 
similarly  represented  and  brought  to  efficient  expression. 
The  socialism  of  the  laboring  classes  thus  appears  as 
at  once  the  last  stage  of  the  great  process  of  emancipa- 
tion extending  from  the  Middle  Ages  to  the  present, 
and  as  the  forerunner  of  the  new  period  of  the  modern 
class-State. 

The  differentiation  of  class  interests  is  furthermore 
distinctly  favored  by  the  tendency  towards  centraliza- 
tion, as  against  free  competition  in  industrial  enterprise. 
While  until  recently  manufacturers  and  dealers  entered 
into  a  fierce  competition  with  one  another,  they  have 
learned,  through  the  experience  of  the  ruin  of  some  of 
their  number  by  excessive  competition,  that  the  com 
mon  interests  of  the  manufacturers  of  a  given  trade 
when  centralized  can  secure  the  prosperity  of  all.  There 
have  thus  developed  selling  agreements,  pools,  trusts, 
and  various  other  consolidations  of  interests.  Legis- 
lation cannot  ignore  these  conditions.  As  I  have  else- 
where indicated, "^  legislation  must  face  the  problem  "of 

^Berolzheimer,  "Zur  Kartellfrage.  Legislativpolitischc  Betrach- 
tungen." Appendix:  "Entwurf  Eines  Gesetzes  betreffend  die 
Kartellierungen"  ("Juristische  Vierteljahresschrift  des  Deutschen 
Juristenvereins"),  Prague,  35  vols.,  N.  S.,  19  vols.,  Parts  III  and  IV, 
Vienna  1903,  pp.  97-149,  101. 


474  SOC'lOLOCdCAL  rillLOSOPHIKS    [(  ii.  VII 

finding  a  proper  legal  embodiment  for  these  economic 
conditions,  so  that  they  shall  no  longer  be  forced  to 
resort  to  subterfuges  and  irregular  procedures  to  retain 
an  appearance  of  conformity  to  the  law.  Legisla- 
tion must  likewise  dc^•ise  means  to  prevent  abuse 
and  exploitation  on  the  part  of  the  consolidation  of 
interests." 

It  may  not  be  amiss  to  observe  that  the  organization 
of  syndicates  and  other  forms  of  consolidation  forms  a 
practical  aigunu-nt  against  the  socialistic  position  of 
Marx  and  his  f()lloA\crs  in  their  views  of  the  present 
form  of  the  State.  For  socialism  urges  that  a  capitalis- 
ti(-ally  organized  society  will  never  be  able  to  regulate 
])roductIon;  that  periods  of  (Aer-jiroduction  will  inevita- 
bly be  followed  by  crises  due  to  inuler-production ;  and 
that  the  socialistic  order  alone  can  i^rojierly  regulate 
these  interests.  It  has  been  shown  tliat  when  the 
situation  arises,  the  State,  as  at  present  organized,  can 
successfully  deal  with  the  problem.  As  re]iresentatives 
of  class  interests  there  must  fm-tiicr  be  considered  the 
very  influential  landholding  class,  and  again,  the  inde- 
pendent middle  classes,  which,  since  the  rise  of  the 
great  mercantile  and  industrial  enteri)rises,  ha\e changed 
their  character  and  been  replaced  by  a  new  middle  class, 
comiiosed  of  the  higher  grade  em])l()>f('s  ot  the  great 
iiulustries,  and  of  business  men. 

Recent  legislation  has  considered  tl'e  intensts  of 
s]iccial  classes  and  passed  laws  in  behalf  of  the  members 
of  one  or  another  economic  class.  Labor  has  been  repre- 
sented in  the  legal  recognition  of  its  claims  to  a  share 
in  the  organization  of  industry,  and  again  in  labor 
insurance  laws.  Siiecial  I'rovisions  for  emi)lo>ers  and 
laborers,  as  well  as  for  clerks  and  ai)])rentices,  have 
been  cstal)lishe(l  in  ((»iinecl  i<  m  with  courts  devoted 
S])ecirKall>'    1o    industrial    and    mercantile   affairs.     The 


§52]  CLASS  AND  STATE  475 

restrictions  of  the  privileges  of  the  stock  exchange/ 
laws  for  the  prevention  of  unfair  competition,-  regula- 
tions for  medical  practitioners,  and  so  on,  are  further 
examples  of  class  legislation.  In  so  far  as  these  laws 
emphasize  the  affiliation  of  the  members  of  particular 
callings,  industries,  or  occupations,  they  serve  to  re- 
enforce  the  stratification  of  society,  and  present  examples 
of  the  influence  of  legislation  upon  social  and  economic 
phenomena. 

Parallel  to  the  development  in  law  and  economics, 
there  proceeds  a  transformation  of  an  intellectual  order, 
which,  in  its  effect  upon  religious  belief,  is  especially 
noteworthy.  This  intellectual  unrest,  characteristic 
of  our  day,  has  produced  an  extraordinary  upheaval  of 
religious  faith.  All  possible  attitudes  find  their  repre- 
sentatives. Leaders  abound  and  disciples  are  few. 
The  absence  of  uniform  cultural  standards  is  evident 
aesthetically  in  the  many  adaptations  of  the  styles  of 
former  periods,  and  in  the  failure  to  originate  an  ade- 
quate style  expressive  of  present  needs.  Out  of  this 
period  of  intellectual  and  moral  disruption  there  is 
gradually  emerging  a  new  unity  and  solidarity.  The 
psychological  factor  that  is  tending  towards  the  forma- 
tion of  the  "Klassenstaat,"  the  class-State,  is  the  dis- 
organization of  our  culture,  and  the  consequent  desire 
for  peace  of  mind    and   material   stability.     But  there 

1  See  §  10  of  the  laws  of  the  Stock  Exchange  of  June  22,  1896 
(Börsen-Ehrengericht). 

2  There  is  a  sharp  conflict  of  opinion  regarding  the  character  of  the 
law  for  the  prevention  of  unfair  competition,  of  May  27,  1896.  'The 
conception  which  I  suggested  and  established  is  as  follows:  'The 
regulations  in  regard  to  unfair  competition  constitute  a  disciplinary 
law  for  the  trades  within  the  scope  of  the  adjective  and  substan- 
tive divisions  of  the  common  law."  See  also  Berolzheimer,  "Die 
Entgeltung  im  Strafrechte,"  pp.  213-217,  214;  also  p.  232,  notes 
6  and  9,  for  the  references  to  my  presentations  in  former  writings. 


476  SOCIOLOGICAL  PHILOSOPHIES    [Cn.  VII 

can  be  no  progress  without  struggle.  The  newer 
materialism  or  monism,  an  intolerance  of  a  mediseval 
type,  an  enlightened  tolerant  Protestantism,  and  other 
related  trends  of  an  idealistic  philosophy,  are  all  com- 
peting for  favor.  To  the  observant  student  of  civiliza- 
tion there  will  hardly  be  a  doubt  as  to  which  of  these 
tendencies  represents  an  advance  to  the  cultural  achieve- 
ment of  the  future. 

CONCLUSION 

The  stages  of  the  evolutionary  series  thus  presented 
may  be  summarized  as  follows :  the  universal  absolutism 
of  the  Church;  the  absolutism  of  the  ruling  nobility; 
enlightened  absolutism;  absolutism  of  the  law;  and 
the  limited  absolutism  of  the  law.  Here  enters  a  new 
series,  the  first  stages  of  a  new  evolution  typified  by  the 
modern  class-State,  the  "Klassenstaat."  Though  this 
finds  its  parallel  in  certain  phases  of  mediseval  and  later 
conditions,  yet,  in  contrast,  the  new  classes  are  essen- 
tially economic  in  nature:  they  are  free,  and  tend  to 
express  themselves  in  a  free,  spontaneous,  not  legally 
prescribed  form  of  association.^ 

What  the  ultimate  form  of  the  class-State  is  to  be, 
cannot  be  predicted.  Prophecies  in  the  field  of  economics 
are  likely  to  be  vain.  But  it  is  certain  that  the  class- 
State,  founded  as  it  is  upon  an  economic  basis,  must 
bring  alxnit  political  changes.  The  change  of  economic 
conditions  nnist  sooner  or  later  involve  a  fundamental 
change  of  the  law,  and  ijarticularly  of  imblic  law.  Par- 
liamentary rei)re«entation  of  the  ])eople  will  pave  the 
way  for  legislaticjn  in  the  interest  of  the  new  class 
interests.     The  answer  to   the  great    ])olitical   ])roblem 

•What  is  decisive  is  not  merely  the  ]Hirsiiit,  but  the  piihHcation 
and  emphasis  of  class  interests,  and  the  growing  recognition  of  the 
validity  of  such  endeavors. 


§  52]  CONCLUSION  477 

as  to  which  class  will  gain  supremacy  may  perhaps 
read:  The  free  economic  classes  as  recognized  by  the 
law  of  the  future. 

It  is  a  significant  symptom  that  the  proprietary  and 
educated  classes  are  asserting  their  rights.  Such  asser- 
tion, it  may  be  hoped,  will  counteract  the  extreme 
democratization  of  social  ethics,  which  threatens  to 
make  the  interest  of  the  lower  classes  equivalent  to  the 
welfare  of  the  State,  and  in  its  ultimate  consequences 
leads  to  the  economic  oppression  of  the  upper  classes, 
as  clearly  as  the  influence  of  Rome  is  aiming  at  the 
spiritual  enslavement  of  the  lower  classes. 

The  original  problem  of  legal  philosophy,  which  Rous- 
seau formulated  and  Kant  accepted,  was  the  manner 
of  association  of  the  community  through  law  and  govern- 
ment, both  as  an  expression  and  as  a  guaranty  of 
individual  freedom.  This  problem  now  demands  a 
restatement  in  consideration  of  altered  economic  condi- 
tions and  intellectual  outlook.  Present-day  interests 
sound  a  note  of  warning  to  the  effect  that  the  emanci- 
pation of  the  fourth  estate  must  not  result  in  an  enslave- 
ment of  the  upper  classes,  must  not  permit  the  intellectual 
gains  which  European  civilization  has  achieved  since  the 
days  of  the  Reformation,  to  be  placed  at  the  mercy  of 
the  powers  of  darkness. 

The  legal  representation  cf  the  legitimate  interests 
of  every  economic  class,  and  the  legal  guaranty  of 
intellectual  freedom,  alone  can  secure  for  every  class 
within  the  State,  and  for  every  individual  within  his 
class,  the  self-assertion,  influence,  and  freedom  which 
are  necessary  to  the  complete  expression  of  each  class 
and  of  its  individual  members  as  such.  It  is  only 
by  such  means  that  a  people  can  attain  its  efficient 
development  and  a  position  of  influence  in  the  common- 
wealth of  nations. 


INDEX 


[The  numbers  refer  to  the  pages.] 


Absolutism,  132;  153. 

Adler,    Georg,    xliv,    note  1 ;    107, 

note;  445;  445,  note  3. 
Adler,  Max,  289,  note  2. 
Affolter,  13,  note  3;  225,  note  1. 
Ahrens,  xlii,   note   1;  2,  note;    8, 

note;  51,  note  1;  211,  note  5; 

244;  245-248;  325,  note  1. 
Althusius,  Johannes,   118,  note  2; 

119,   note;    120;   120,   note   1; 

121. 
Ammon,  Otto,  463,  464;  463,  note 

1. 
Anarchism,  267  seq.;  287  seq. 

violence  in,  292  seq. 
Anders,  43,  note  4. 
Antisthenes,  74. 
Aquinas,  Thomas,  94;  94,  note  2; 

98-101;    98,    notes    1,    2;    99, 

notes  1,2,3,4;  100,  notes  19; 

101,  note  1. 
Aranya,  36,  note  2. 
Aristippus,  75. 

Aristotle,  28,  note  1;  49,  note  2; 
52,  note  2;  53,  note  2;  57, 
note  2;  67  seq.;  68,  note  2; 
71,  note  3;  72,  notes  1,  2, 
3;  73,  notes  1,  2;  74,  notes 
1,  2;  76;  94;  100;  101,  note 
1;  115; 142;  239;  417,  note 
1 ;  420. 

ethical  concepts  in,  67;  68. 

Greek  institutions  in,  68-72; 
73. 

justice  in,  72. 

philosophy  of,  67  seq. 
Aryans,  Vedic.    See  Vedic  Aryans. 
Aschaffenburg,  373;  443;  444,  note. 
Association     of     American     Law 

Schools,  V. 
Assyria.     See  Babylonia  and  As- 
syria. 
Auer,  Fritz,  372,  note  2;  444,  note. 
Augustine  triumphans,  102. 


Augustine,  St.,  61,  note;  94  seq.; 

94,  note  1;  95;  95,  notes  1,  3, 

4;  96,  notes  2,  3;  97,  notes  5, 

6,  7. 
Austin,  John,  xiii;  141;  141,  note  3. 
Babylonia,    33.      See    also    Baby- 
lonia and  Assyria. 
Babylonia  and  Assyria,  32  seq. 
Bachofen,  48,  note  3;  52,  note  1; 

388-389. 
Bakunin,  289; 292-294. 
Baldwin,  J.  Mark,  444-445. 
Bar,  von,  450. 
Barclay,  118,  note  2. 
Bärenbach,  Friedrich  von,  364,  note. 
Barth,    Paul,    303,    note    2;    364, 

note;  444;  444,  note  1. 
Bastian,  364,  note. 
Bauer,  168,  note  2;  170,  note  3. 
Baumann,  J.  J.,  101,  note  2;  453- 

454. 
Bebel,  278-279;  463,  note  2. 
Beccaria,  152. 
Bekker,  12,  note  3;  214. 
Belfort-Bax,    280,     note    2;    281, 

note  1. 
Benfey,  Th.,  39,  note  3. 
Bentham,  xiv;  76;   137-139;   138, 

notes   1,    2,   3,   4;    139,    notes 

1,  2. 
Bergbohm,    xii,    note    3;    xiv;    3, 

note;   6,   note  3;   9,   note  2; 

17,  note  1;  141,  note  4;  214. 
Bergemann,   114,  note;  335;  367; 

446,  note  1. 
Bernatzik,  7,  note. 
Bernheim,  96,  note  1. 
Bernhöft,  12,  note  4;  37,    note  4; 

39,   note  3;  47,    note    2;    49, 

notel;  84,   note;    388,   note; 

392,  note. 
Bernstein,  Eduard,  280;  282;  393. 
Berolzheimer,    vii;    xiii,    note    3 

XV ;  xviii;  xxi;  xxii;  xxiii;  xxiv 

xxxix;    7,    note;    21,     note    2 


480 


INDEX 


[The  numbers  re 

Berolzheimer — {continued) . 

23,  note  1;  34,  note  1;  49, 
note  3;  51,  note  2;  55,  note  1; 
63,  note  1;  67,  note  1;  74, 
notes  1,  2;  77,  note  1;  82, 
note;  86,  note  3;  101,  note  2; 
116,  note  3;  127,  notes  2,  3; 
129,  note  2;  134,  note  7;  141, 
note  2;  165,  note  2;  174, 
note  1;  196,  note  2;  201.  note 
3;  202,  note  1;  203,  note  1; 
204,  note  3;  206,  note  6;  220, 
note  3;  221,  note;  222,  note  2; 
225,  notes  4,  5;  227,  notes 
1,2;  228,  note  4;  248,  note  2; 
295,  note  2;  317.  note;  335, 
note  6;  350,  note;  370,  note  1 ; 
372,  note  2;  374.  note  3;  383. 
note;  392.  note  1;  417,  notes 
2,  3;  450,  notes  1.  2.  5,  6; 
461,  note;  469,  note;  470, 
notes  1,  2;  473,  note;  475, 
note  2. 

Beseler,  370;  370,  note  1. 

Bierling,  9.  note  1;  10;  10,  note  1; 
11,  note  2;  385-386,  and 
notes. 

Biermann.  W.  Ed..  22.  note;  130. 
note  3;  173.  note  2;  272.  note 
1;  294,  note  2. 

Binding,  9,  note  3;  23;  320;  381- 
384;  387;  448. 

Bismarck,  332. 

Blanc,  Louis,  265-267. 

Blum,  Erich,  274,  note  2. 

Bluntschli.  15,  note  1;  38,  note  2; 
136,  note  1;325,  note  2. 

Bocrhoris,  30.     Sec  also  Code  of. 

Boden,  Friedrich,  392,  note. 

Bodin,  119,  note;  120;  121,  note  1. 

Bonar,  J.,  7,  note;  169,  note  2. 

Borght,  V.  d.,  332.  note. 

Bouchard,  303,  note  1. 

Brahmin,  37. 

Brauii,  Heinrich,  365,  note. 

I'.rt-ntano,  L.,  375. 

Urimo,  461,  note. 

Buddhism,  202. 

Cacsarinus,  Furstcncrius.  Sec 
I  liljiiitz. 


fer  to  the  pages.] 

Calker,  van,  15,  note  1;  335;  335, 

note  7. 
Capital,  270  seq.;  277. 

and  Labor.     See  Labor. 
Caput,  34. 
Carneades,  77. 
Castes,  37.  note  1. 

in  Egypt.  28.  note  1. 
in  India,  37  seq. 
Castillejo  y  Duarte,  xvii,  note  3. 
Cathohc  Church,  51. 

and    Greek    philosophy.    93; 

94. 
and  State.  95-97;  102;  119. 
doctrines  of,  101  seq. 
Pax,  96-98. 

Two  Swords,  101  — philoso- 
phy of  102. 
St.  Augustine,  94  seq. 
Thomas  Aquinas,  98  seq. 
sovereignty  in,  107  seq. 
Chaldea,  33;  34.     See  also  Baby- 
lonia and  Assyria. 
China,  22. 

Christianity.      See    also    Catholic 
Church, 
ethical  view  of.  89-90. 
Cicero.    1,    note;   83,    note   2;   86, 
note  4;  87-89;  87,  notes  1,  2; 

88,  notes    1,   2,   3,   4,   5,   6; 

89.  notes  1,  2;  115,  note  3. 
Civic  emancipation,  124  seq.;  162. 
Code  — 

of  Bocchoris,  30. 

of  Hammurabi,   34  seq.     See 
also  Hammurabi. 

of  Manu,  39,  note  3. 

Prussian,  164. 
Codex    Hammurabi.      See    Ham- 
murabi. 
Coercion.    See  Law,  and  Coercion. 
Cohen,    Hermann,    392-395;    392, 

notes  1,  2;  398;  403.     " 
Colbert,  165;  166. 
(\)mnunial  will.     See  Connnunity. 
Conujiunisni,  2()0  seq;.  291  scq. 

and  anarchism,  267  seq. 

and  comnninists,  90. 

and  socialism,  2(57  seq. 

French,  2(30  scq. 


INDEX 


481 


[The  numbers  refer  to  the  pages.] 


community  — 

organization  of,  365  seq.;  367. 
Corace,  xix;  3US-316;  351. 
Conrad,  462. 
Corporation,  370  seq. 
Coste,  364,  note. 
Crime.      See  Punishment. 
Croce,  xvii,  note  4. 
Crusades.      See  Economic  organi- 
zation and  the  Crusades. 
Culture  — 

conception  of,  xvii  seq. 

stages  of,  xli;  xlii. 
Curtius,  48,  notes  1,  2.  3. 
Cynics,  74. 
Cyrenaics,  75. 
Dahn,  xHi,  note  3;  2,  note;  6,  note 

2;  248;  252-255. 
Dante,  108;  108,  notes  2,  3. 
Dargun,  392,  note. 
Darwin,    xvii;    56;   230;    317;  458; 

463,    note  2;  464;  464,   notes 

1,  2;  465. 
Dauriac,  xx,  notes  1,  2. 
De  Morgan,  34. 
Descartes,  115;  234;  314. 
De  Tocqueville,  iii. 
Dhama,  38;  97. 
Dharma,  38;  39. 
Dialectics,  17. 

in  Hegel,  219-223. 
Dicaspoloi,  47. 

Diderot,  152-155,  and  notes;  170, 
note  3;  336. 

his  maxims,  154,  note. 
Diehl,  177,  note. 
Dietzel,  332,  note. 
Dike,  47. 
Diodorus  Siculus,  26;  27,  note  1; 

28,  note  1 ;  31,  note  3. 
Diogenes  Laertius,  76,  notes  1,  2. 
Dodona,  47. 

Du  Bois-Reymond,  146,  note  2. 
Dühring,  190. 
Dumont,  138,  note  1. 
Du  Plessis-Mornay,  120,  note  2. 
Economic  organization,  328  seq. 

and  the  church,  104-106. 

and  the  Crusades,  105. 

crafts  and  trades,  106-108. 


Economic     organization  —  (con- 
tinued). 

influence  of  Jews  upon,  106. 

in  Middle  Ages,  103  seq. 
Economics  — 

and  industry,  172  seq. 

and  law,  20  seq.;  399  seq. 

conception  of,  23. 

classical,  170  seq. 

Egyptian,  27  seq. 

Mosaic,  43  seq. 

of  labor.     See  Labor. 

philosophy  of,  16;  375  seq. 
conception  of,  5. 
in  Fichte.     See  Fichte. 
Egypt,  25  seq. 
Eichhorn,  212. 
Eisler,  R.,  3,  note;  365,  note;  446, 

note  1. 
Eleutheropulus,  462,  note  1. 
Ellis,  Havelock,  443,  note  4. 
Elster,  170,  note  2. 
Eltzbacher,  289,  note  2;  294,  note  2. 
Emancipation,  281  seq.;  286;  315; 

467  seq. 
Enfantin,  263. 
Engels,  Fr.,  xiv;  269,  note  1;  273; 

276;  284. 
Epicureans,  76. 
Epicurus,  76;  131. 
Erdmann,  Joh.  Ed.,  53;  53,  note  4. 
Erinyes,  48;  49;  56. 
Ethics,  xxiv;   xliii.     See  also  Law, 
ethical  concepts  in. 

Egyptian,  26  seq. 

Greek.  47  seq.;  91. 

Kantian,  181-184. 
of  the  Vedic  Aryans,  38  seq. 
Ethos,  38. 
Eumenides,  48. 
Evolution,  xvii;  456  seq.;  458  seq.; 

461  seci.;  463  seq. 
Exchange.      See  Supply   and   De- 
mand. 
Falckenberg,  184,  note  3. 
Fechner,  461,  note. 
Federal  Supreme  Court,  v. 
Ferguson,  xlv,  note  1;  352-354. 
Ferri,  18,  note  1;  372;  465. 
Feudal     system.       See    Economic 
organization. 


482 


INDEX 


[The  numbers  refer  to  the  pages.] 


Feuerbach,  xiv;  269,  note  2. 
Fichte,  J.   G.,    183;   192-201,  and 

notes;    221;    230;    234;    235; 
264;  409; 420. 
philosophy  of  law  of,  194-198. 

philosophy    of    economics    of, 
198-200. 
Finger,  373. 
Fischer,  Kuno,  229. 
Flux  — 

Heraclitean,  xviii. 
Fourier,   264-265.     See  also  Com- 
munism. 
Fourth  Estate,  xxv. 
Frankenstein,  332. 
Frederick  the  Great,  146,  note  2; 

162-165,  and  notes. 
Freedom,  and  Free  Will,  194;  362. 

concept  of,  218. 
in  anarchism,  296. 
in  Hegel,  xvi;  218  seq 
in  Kant,  183  seq. 
Free  Trade,  172;  178. 
French  Revolution,  22;  113;  152; 

170;  199;  285;  466. 
Friedberg,  103,  note  1. 
Friedländer,  xiii,  note  1. 
Friedrichs,  392,  note. 
Gans,  232;  232,  note  3. 
Gareis,  xiii,  note  4. 
Garofalo,  372,  note  2;  373. 
Gary,  Elbert  H.,  viii. 
Geyer,  1,  note;  4,  note  2;  95,  note 

2;   117,   note   1;    143,   note   1; 

211,  note  5;  252;  252,  note  1. 
Ghibcllines,  101. 
Giddings,  364,  note. 
Gierke,    118,    note    2;    120;    120, 

note    1;   369-372;   370,    notes 

1.  2;  371,  notes. 
Gilbert,  G.,  62,  note. 
Gneist,  327  sec|. 
(iobiiicau,  357,  note  5. 
Godwin,  VV.,  155. 
Goethe,  127;  230;  401,  note;  405. 
Gopa,  37,  ncjte  1. 
Gothein,  328,  note  2;  421. 
Government,  xliii. 

and  libcrtv.  M8,  ]  H). 

and  popular  welfare.   15(J. 

and  |iii[iiiNii  \\  ill.   I.')0. 


Government — (continued). 
in  Egypt,  27. 
in  India,  36. 
sovereign  in,  121;  162-164;  187 

Grama,  36,  note  2. 

Grave,  J.,  287,  note;  290,  note 
291,  note;  292,  notes  2,  3 
293,  notes  1,  2;  295,  note  1 
297,  note  1. 

Gray,  vi. 

Greek  Institutions.  See  Institu- 
tions, Greek. 

Greek  Law.    See  Law,  Greek. 

Greek  Philosophy.  See  Philoso- 
phy, Greek. 

Grimm,  W.,  102. 

Gross,  H.,  443,  note  4. 

Grotius,  Hugo,  xlv,  note  1;  6 
74,  note  1;  115-118;  115, 
notes  2,  3,  4;  116,  notes  1,  2 
3;  117,  note  1;  126;  156;  284 
420. 

Grünberg,  303,  note  1. 

Guelphs,  101. 

Gumplowicz,  xxi;  13,  note  3;  167 
302,  note  2;  312;  325,  note  2 
326,  note  1;  327,  note  3;  328 
note  4;  352;  354;  354,  note  1 
356-358,  and  notes;  362;  363 
368;  369;  309,  note;  465, 
note  2. 

Günther,  S.,  388,  note  1. 

Haeckel,  Ernst,  xvii;  230;  458- 
462;  465. 

Hamel,  van,  373. 

Hanmiurabi,  34,  35. 

Haney,  xiii,  note  2. 

Harms,  xvi,  note  3;  2,  note;  214. 

Harnack,  113,  note;  114,  note. 

Harper,  Robert,  34,  note  5. 

Hartmann,  Ed.  von,  190;  334 ; 427- 
431. 

Hasbach,  W.,  173,  note  1.  - 

Haymaim,  F.,  147;  14S,  note;  149, 
note  2. 

Hegel,  XV.  seq.;  1;  1,  note;  17;  52 
53;  55;  117;  127;  183 
190;  191;  215-232;  249 
note  1;  254;  2.55;  258;  282 
285;  317;  3.34;  387;  422 
431;  -161 .  note. 


INDEX 


483 


[The  numbers  refer  to  the  pages.] 


Hegel — (continued) . 

conception  of  the  State,  223- 
224. 

critical  verdict  of,  228-232. 

dialectics  of,  219-223. 

ethics  of,  217-219. 

legal  ideas,  224-228. 

philosophy  of  law,  215-217. 
Hegelians,    xxi,    seq.;    215;    232- 

233. 
Heinemann,  383,  note. 
Hensel,  317,  note. 
Heraclitus,  55;  56;  230. 

philosophy  of,  55;  56. 
Herbart.     248-251;    248,    note    3; 

249,  notes  1,2,3;  250,  note  1 ; 

251,  notes  1,2,  3. 
Herder,  211-213. 
Hermann,  Fr.  B.  W.  von;  7,  note. 
Herodotus,    26;    28,    note    1;    29, 

note  1. 
Hesse,  A.,  462,  note  1. 
Hieronymus  Balbus,  109. 
Hildenbrand,   48,    notes  2,   3;   52, 

note  3;  54,  note  2;  55,  note  3; 

56,    notes    2,    3;    71,    note    1; 

75,  note  3;  85,  notes  1,  2. 
Hirzel,  39,  note  4. 
Historism,    254,    255.      See    also 

Law,  Historical  School  of. 
Hobbes,    76;    122-125;    131;    132; 

180;  185;  241;  351. 
Homer,  49. 
Hugo,  6;  17;  212. 
Hume,  xix. 
Hybris,  48;  91;  97. 
Idealism,  50. 
Ihering,  von,  v;  xv,  note  1 ;  xHii;  3, 

note  1;  14;  76;  129;  337-351; 

337,   note  2;  .345,    note;  383, 

note  1 ;  448. 
Illusion  — 

principle  of,  xii ;  xliii ;  xliv,  note 
1;  102;  168;  445. 
Inama-Sternegg,     von,    104,    note; 

106,  note. 
India,  22. 

Individualism,  289  seq. 
Industry.     See  Labor. 


Institutions  — 

Greek,  67  seq. 

the  aristocrat,  68-70. 
society,  70-72. 
Roman,  78  seq. 

paterfamilias,  80  seq.;  82. 
property  in,  81. 
Roman-Italian     State,     82 

seq. 
Yeoman,  103. 
Jaffe,  Edgar,  365,  note. 
Jahweh,  41;  41,  note  4. 
Jastrow,  I.,  16,  note  1. 
Jellinek,  10;  10,  note  2;  17,  note  1; 
69,    note;    115,    note    1;    120, 
note  1;  151,  note  4;  257,  note 
2;  272,   note  2;  .325,   note  2; 
326,   note   1;  331,   note;   421; 
435-442. 
Jewish  State.     See  Law,  mosaic. 
Jews.    See  Economic  organization, 

influence  of  Jews  upon. 
Jolly,  Julius,  39.  note  3. 
Junius  Brutus,  120;  120,  note  2. 
Jurisprudence,    iv;   6;   9   seq.;    11; 
385,  note  2;  431   seq.;  448. 
and  history,  208  seq. 
ethnological,  387  seq.,  424. 
Jus  civile,  xxv. 

Jus  naturae.    See  Natural  law. 
Justice,    116;    117;   214;  411   seq.; 
417  seq. 
and   morality,   409  seq.;  452, 
seq. 
Kakkadu,  34. 

Kant,  xi;  xi,  notes  2,  3;  xii;  xiii 
seq.;  xiii,  note  1;  xv,  note  1 
xlvii,  note;  17;  129;  129 
note  1;  134;  134,  note  6 
180-192;  195; 196; 199-200 
202;  221;  222,  note  1;  229 
234;  2.35;  255;  286;  312 
314;  393;  408;  420;  428 
452;  460,  note;  466;  477. 
conception  of  the  State,  187; 

188. 
ethics  of,  181-184 
philosophy  of  law,  184-187. 
Kantian,  xxi  seq;  189-192. 
Kaulla,  107,  note. 
Kautsky,  K.,  269,  note  1;  279;  2S2. 


dS-i 


INDEX 


Kitzinger   3T4   note  1- 

Klassenstaat,  ^^-',  *''^' ,'    '  „ 
466  seq.;  473  seq.;  476  seq. 

Klöppel,  328,  note  2;  367. 

Klotz,  373. 

Knies,  375;  446,  note  1. 
Kohler,  xvi;   xvii  seq;  xvu,  notes 
1    2    3,  5;  xvui,  notes   1,  ■*, 
xlx.'note  2;  xliii,  note;  xhv. 
note    3;    3,    note;    10,    note; 
12-    13,    note  1;    15.  note  1, 
17.   note    1;   32,   note   2;  5-3 
notes  1,  3;  35,  notes  1,2;  öö, 
note  4;  229;  230;  230.  note; 
387;  387,  note  2;  389,  note  1; 
390-  422-427. 
Krapotkin,    287,    note;    291-292; 

293,  note  2;  294,  note  4. 
Krause,    Karl  Chr.   Fr      2     note; 
240-244;    240,    note    2;    24b, 
248; 443. 
Krauss,  A.,  444,  note. 
Kuhlenbeck,  465-466. 
Kuhn  V.  Fairmont  Coal  Co.,  v 
Kuhn.  36,  note  3. 
Kulturnormen,  10,  note. 
Kulturstaat.   183;    193;   200;   224; 
231;  255;  268;  275;  300. 

Laband,  Paul,  xxxix. 

Labor,  172;  261;  266;  270  seq 

and  capital.    See  Capital. 

economics  of.  270  seq.;  30o; 
471;  474  seq. 
Labriola,  392.  note;  39.5,  note  3 

"Laisser  faire,"  xiii;  xlvii. 
Lamarck.  230;  317;  465. 

Lammascii,  374. 

Lampredit,K.,  22,  note;  107,  note 

Landrecht.    See  Code.  Prussian. 
Landsbcrg.  124.  note4;  133.  note. 
Lannuet.  Hubert.  120,  note  2. 
Lassall.-,  xiv.  note  1;    48,  note    2; 

55,  notes  3.  4;  56,  notes  2.  .i; 

178-   232;  232,   note    1;  2.i.V 

233,' note  1;  274  276;  285;  471 
Lasson,  xxii;  2,  note;  67,  note  2; 

1.33,   note  2;    194,   note;  211. 

„ot<-  5;  217.  noU-  2;  255  259. 
Lau.cnt.  105.  note;  114.  note 


[The  numbers  refer  to  the  pages.] 

Law      See  also  Legislation. 

and  coercion,  405  seq.;  429 
and  economics,   20  seq.;  399 
418.    421.      See    also 


seq.;    i^-.     — -• 
Economics,  philosophy  ot. 
and   society.      See   Social   or- 
ganization, 
and  the  human  will,  217  seq.; 

343. 
commerical 

in  Babylonia,  33. 
in  Egvpt.  33. 
compamtive.   6;   12;    18;  387 

seq.;  390  seq. 
constituted.  4;  98;    133;  411 

seq. 
customary.  8. 
ecclesiastical.  4. 
Egyptian.  25  seq. 
ethical  concepts  in,  134;  1^<  , 
158;     160;     181-183;     198; 
O02-     203;     205-207;    236; 
238'seq.;248seq.;258;259; 
334  seq.;  3.36-337;  338  seq.; 
359  seq.;  409  seq.;  412  seq.; 
415-    422    seq.;     425.    427 
seq.;  433  seq.;  446  seq.;  451 
seq.;  454  seq.;  456  seq. 
historical  school  of.  6-7;   17; 

21;  204  seq.;  254;  375. 
Mosaic.  35;  40  seq. 
natural.     See  Natural  Law. 
Oriental.     See  Egyptian, 
origin  of.  213;  320  seq.;  390. 

philosophy  of.  iv;  xxiv  seq.; 
xlvi;  8  seq.;  383;  422  seq.; 

424;  441. 
conceptionof.  1-4;180;18_4 

seq.;216;217;44/;47<. 
in  Ahrens,  244  seq. 
in  America,  v  seq. 
in  Europe,  vii. 
in  Fichte,  194-198. 
in  Germany,  xxiii.  ' 
in  Greece,  46  seq. 
in  Ihering,  3.50;  351. 
in  Kant,  188  seq. 
in  Krause,  240  seq. 
in  Lasson,  255  seq. 
in  Schelling,  204  seq. 


INDEX 


485 


[The  numbers  reter  to  the  pages.] 


Law,  philosophy  of- — (continued). 

method  of,  16-20;  398  seq. 

or  recent  systems,  233  seq. 

psychological  aspects  of,  431 

seq.;  442  seq. 
Roman,  7;  79  seq.;  156. 
aequitas  in,   83  seq. 
and    Christian    ethics,    89 

seq. 
justice  in,  100. 
persona  in,  86. 
precepts  of,  99. 
Twelve  Tables  in,  78. 
statutory.      See   Law,   consti- 
tuted. 
Vedic  Aryan,  36. 
Le  Bon,  Gustave,  364,  note. 
Legislation  — 
in  Egypt,  28. 
Mosaic,  35. 
Leibnitz,   126;  156-160;  180;  181; 

314; 334. 
Leist,  B.  W.,  31,  note  2;  36,  note 
2;  38,  notes  1,  2;  39,  notes  1, 
2;  47,  note  2;  48  notes  1,  2,  3; 
83,   notes    1,    2,   3;   84,   note; 
88,  note  6;  391. 
Leonardo  da  Vinci,  122,  note  4. 
Lepsius,  C.  R.,  31,  note  2. 
Leroy,  iv. 

Letourneau,  364,  note. 
Lex.     See  Law. 
Liberty.       See    Government    and 

liberty. 
Liepmann,  14,  note  1;  120,  note  1; 
146,  note  1;  147;  149,  note  3; 
450. 
Lilienfeld,  P.  von,  364,  note;  463, 

note  1. 
Lilenthal,  von,  373. 
Lingg,  12,  note  1;  17,  note  1. 
Lippert,  364,  note. 
Liszt,  von,  15,  note  2;  18,  note  1; 
372,    and    notes;    373;    373, 
note  3;  383,  note. 
Locke,  312,  note  4;  134-137;  135, 

note  1;  136,  note  1;  138. 
Loening,  Richard,   17,  note  2;  68, 

note  2;  136,  note  1;215. 
Lombroso,  443,  note  4. 


Loria,  303-304. 

Lossen,  120,  note  2. 

Lupoid   V.    Bebenburg,    109.     See 

Bebenburg. 
Luther,  113;  114;  114,  note;  189; 

284;  417. 
Lvon,  34,  note  4. 
Ma,  31. 

Macchiavelli,  110;  HI. 
Mackav.  287,  note;  290,  note;  294, 

notes  1,  3;  297,  note  1;  322. 

note  2. 
Maine,    Sir    Henry    Sumner,    xiv, 

note  5;  82,  note;  86,  note   1; 

392.  note. 
Manchester  School,  275;  275,  note 

1. 
Manifesto  of  1848.  283  seq  ;  283, 

note. 
Manu.    See  Code  of  Manu. 
Marsilius    of     Padua,     109;     109, 

notes  1,  2,  3. 
Marx,   xiv;  xiv,   note   1;    20;    22; 

178;  262;  269-274;  276;  277; 

281;  282;  282,  note;  283;  283, 

note;    285;    302;    410;    418; 

465;  471;  474. 
Masaryk,  269,  note  2;  446,  note  1. 
Motzat,  H.,  462-463. 
Maugras,  G.,  146,note2;  150,  note. 
Mayer,  Ma.x  Ernst,  10,  note;  387. 
McCulloch,  174,  note  2. 
Mediajvelism.  93seq.;  113;  120. 

and  the  Renaissance.  110. 
Medici,  Lorenzo  de.  110. 
Meili.  P..  391,  note  2. 
Menger,   Anton,   270,   note;   272, 

note  1 ;  298-302. 
Menger,  Carl,  377. 
Menzel,  Ad.,  132,  note  1. 
Mercantilists,  165  seq.;  170.     See 

also  Economics. 
Merkel,    Adolf,  7,    note;  10;    10 

note  3;  368;  382,  note  2;  446- 

450. 
Merkel,  Rudolf.  446,  note  2. 
Metschnikoff,  323,  note. 
Meyer,  Ed.,  45,  note  3. 
Meyer,  G..  14,  note. 


486 


INDEX 


[The  numbers  refer  to  the  pages.] 


Michaelis.   Kurt,  41,    note   1;  42, 

notes  1,  2,  3,  4;  43,  notes  1.  2, 

3.  4,  5;  44,  notes  2,  4.  6,  7; 

45,  note  1;  462,  note  1. 
Mill,    John    Stuart,    68,    note    2; 

139-141;    139,    note    3;    140, 

notes  1,  2,  3;  141,  notes  1,  2. 
Mirabeau,    Victor   Riquetti,    169; 

170,  note  1. 
Miraglia,  vii. 
Mohl,  R.  von,  14,  note;  95,  note  2; 

143,    note    1;    167,    note    1; 

325. 
Mollat,    156,    note   2;    157,    notes 

2,  3;  158,  notes  1,  2.  3,  4,  5; 

159,   note  2. 
Monarchomach.       See     Tyranny, 

rebellion  against. 
Monism.     See  Evolution. 
Monogamy.  See  Woman,  position 

of. 
Montaigne,  77,  note  2. 
Montesquieu,  xliii,  note  1;  3,  note 

1;  141-143;  141,  note  5;  142, 

notes  1,  2;  143,  note  1. 
Morality.     See  Ethics,  also  Law, 

ethical  concepts  in. 
Morgan,   Lewis  H.,   276,   note  2; 

392,  note. 
Mosaic,    25;   35;  36;   40;  40   note 
2;   41;  42;  43;  44. 

law.    See  Law,  mosaic. 

religious  view,  90. 
Müller,  David  H.,  35,  notes  1,  2. 
Müller.  K.  ().  48,  note  3. 
Müller,  Max,  37,  note  1. 
Müller,  Paul,  11,  note  1. 
Natorp,   393;  395-398;    395.   note 

3;  398. 
Natural  Law,  xiv;  xxii;  6;  21;  98; 

115;  116;  120;  130;  133;  144; 

167;  16S;   174;  195;  197;  209; 

247;  321;  413;  422. 
Navillc,  31,  note  2. 
Nemesis,  49. 
Neo-Hcgeliaii,    xi;    xv;    xix;    xxiv; 

xxxix. 
Nco-Kantian,  xi;  xiii,  xxi  seq.;  8; 

392  seq. 
Neo-I'iatonists,  77. 
Netter,  33."). 


Neukamp,  392,  note. 
Nicholaus  Cusanus,  109. 
Niebuhr,  212. 
Nietzsche,  xliv,  note  2;     190;  290; 

330;  334;  45&-457. 
Nordau,  459,  note. 
Norms,  Theory  of,  9;  381-384;  384- 

388;  412;  448.    See  also  Bind- 

ing. 
Objectivism,  49  seq. 
(Etker,  383,  note. 
CEttli,  35,  note.  2;  42.  note.  2,  44, 

note  5. 
Oncken.  Aug..  101.  note   2;    107, 

note;  169,  note  2. 
Osiris,  31. 

Ostwald,  W.,  323,  note. 
Ownership.    See  Property. 
Pax.     See  Catholic  Church,  phil- 
osophy  of,    doctrines  of. 
Pachmann,  17,  note. 
Pantheism,  xvi;  127. 
Passow,  54,  note  1. 
Patersen,  iv. 
Paulsen,  xii,    note;   451-453;   461, 

note. 
Peiser,  32,  note  2;  33,  notes  1,  3; 

35,  notes,  1,  2. 
Penology,  17,  note  2;  372  seq. 
Persena.  224-227. 
Peter  de  Andlo,  103;  103,  note  2. 
Pfieiderer,    48,    note  3. 
Philosophy  — 

general,  313  seq;.  393;  402  seq. 
ethical  concepts  in,  128  seq; 
393  seq. 

legal  — 

in  England,  134  seq. 
in    F"rance,    141    seq. 

post-Aristotelean.  See  Cynics, 
Cyrenaics,  Stoics,  Epicu- 
reans, Sceptics,  Neo-Pla- 
t(jnists. 

Roman  — 

ethical  concepts  in,  79;  83; 
85-87;  87-89;  90-91. 
in  Cicero,  87  seq. 
Phoenicia,  45. 

Physis,  46;  47.  , 

Physiocrats.    167    seq.      See    also 

Economics  and  Mercantilists.' 


INDEX 


487 


[The  numbers  refer  to  the  pages.] 


Plerret,  29,  note  1;  30,  notes  2,  3 

31,  notes  1,  2. 
Plato,  xlvii,  note;  28,  note   1;  46 

57,   notes    1,   2;   60  seq.;  63 

notes  3,  4,  5;  64,  notes  4,  5 

6,  7;  65,  notes  1,  2,  3,  4,  5 

95;  239. 
Platonism,  60  seq. 

ethical    concepts    in,    61;    62; 
64;  65. 

Greek  institutions  in,  62;  65. 

ideas  and  ideals  in,  63. 
Plotinus,  77;  77,  note  3. 
Plutarch,  48,  note  3;  76,  note  1. 
Politics,  xlvii. 
Polygamy.     See  Woman,  position 

of. 
Positive   Law.      See   Law,    consti- 
tuted. 
Positivism  — 

and    positivists,   xi;   xix   seq.; 
308  seq.      See  also  Conite. 

and  sociology,  133  seq. 
Post,   Alb.   Herrn.,   12;  364,   note; 

390. 
Pound,   Roscoe,  xiii,   note  2;  xiv, 

note  1;  xvi,  note  4;  xx. 
Pragmatism,  xx. 
Prins.  373. 

Property.  226-228;  246;  322;  327. 
Protagoras,  57. 
Protection,  173. 
Proudhon,   287-289;  289,   note  2; 

296,  note  1. 
Prutz,    108,   note   1. 
Ptolemies,  30. 
Puchta,  6;  17;  212;  213. 
Pufendorf,    118,  note   1;   122-126; 

126,  note  1;  133;  157. 
Punishment.    187;   203;   346;  382; 
434;  442  seq.;  449-450.    See 
also  Penology. 

in  Egypt,   26. 
Pythagoras,    51;   52   seq. 

his  philosophy,  51  seq. 
symbolism  in,  52-54. 
justice  in,  52,  53,  54. 
Quasi-tutelle,  30. 
Quesnay,  F.,  167;  168;  169,  notes 

1,    3;    170;    170,    notes    1,    2; 

172. 


Ratio  — 

legis,  4;  83;  84. 
naturalis,  97. 

Rationalism,  xvii. 

Ratzenhofer,  358-364,  and  notes. 

Re,  26;  27. 

Realism,  50. 

Rechtsnormen,    10,   note. 

Rechtsstaat,  137;  186;  188;  189; 
192  seq.;  200;  224;  268;  2S5; 
466. 

Reclus.  Elisee,  287.  note;  290, 
note;  293,  note  1;  295;  297. 
note  1. 

Reformation,  113;  114;  119. 

Rehm,  14,  note;  15,  note  1;  103, 
note  2. 

Religion,  xliii. 

Egyptian,  26  seq. 

Renaissance,  111. 

Renan,  41,  notes  3,  4. 

Reuter,  H.,  95,  note  1. 

Revillout,  Eugene,  25,  note  1;  28, 
notes  1,  2;  29.  notes  1,  2;  30, 
notes  1,  2,  4,  5;  31,  notes  1. 
3;  32,  notes  1,  2;  33,  notes  1, 
2.  4,  5,  7;  34,  notes  1,  2,  3. 

Revillout,  Victor,  25,  note  1. 

Ricardo,   22;   174-178;  290. 

Richelieu,  166. 

Ritter,  51,  note  3;  53,  note  2. 

Rigveda,  36,  note  1;  39,  note  4. 

Rita,  37;  38;  83;  97. 

Rna,  40,  note  1. 

Roberty,   364,  note. 

Rodbertus-Jagetzow,  276-278. 

Röder,  244. 

Rohde.  48,  note  3. 

Roman  dominion,  114. 

Roman  institutions.  See  Institu- 
tions, Roman. 

Roman   law.       See  Law,   Roman. 

Roman  philosophy.  See  Philos- 
ophy, Roman. 

Rossbach,   77,    note  2. 

Rousseau,  J.  J.,  21;  120.  note  1; 
143-151.  and  notes;  186;  188; 
199-201;  2.30;  285;  288.  note 
6;  298;  330;  351;  362;  408; 
420;  466;  477. 


488 


INDEX 


[The  numbers  refer  to  the  pages  ] 


Rousseau — {continued). 

origin  of  State,   147. 

social  contract,  147-150;  14S, 
note. 

social   organization,    144-147. 
Ruedemann,  R.,  444,  note  1. 
Ruppin,  462,  note  1 ;  463. 
Saint-Simon,    260-264;    309;    323. 
Salzmann,  156,  note  1. 
Sandras  de  Courtilz,  167. 
Sat-pati,  36. 
Savigny,  6;  17;  84,  note;  212;  213; 

214. 
Say,  J.  B.,  178;  266. 
Sayana  Akärya,  36,  note  1. 
Sceptics,   77. 
Schäfifle,    328,    note    3;    354-356; 

354.    notes   7,    8;    364,    note; 

463,  note  1. 
Schallmeyer,  462,  note  1. 
Scheil,  34. 
Schleiermacher,  354;  354,notes2,  3, 

4,  5,  6. 
Schelling,    6;   17;   49,   note  1;  55; 

127;  204-211;  230;  234;  235; 

243;    254;    285. 
Schmidt,   Kaspar.     See  Stirner. 
Schmidt.  Max,  392.  note. 
Schmidt,   Rich.,   15.  note   1;  450- 

451. 
Schmoller,  174,  note  1;  377;  445, 

note  3. 
Schoemann,  48,  note  3. 
Scholasticism,    16. 
Schools  — 

of  philosophy  of  law.  xxi  seq. 
Schopenhauer,    xv,    note    1;     117; 

117.   note  3;    143;    144;    190; 

201-204. 
Schreiter,  431;  456. 
Schroder,  L.  von.  52,  note  1 ;  54, 

note  1. 
Schüller.  Rich.,  173,  note  2;  377. 

note  2. 
Schuppe.  W.,  12,  note  3;  13.  note 

2;     17,   note    1;    18.   note   2; 

386.  note  4 ;  433.  note  1 ;  454- 

450. 
Srhurtz.  Heinrich,  364,  note. 
Scipio,  K..  95.  note  4  ;  96,  note  1. 
Seneca,  89;  115,  note  3. 


Shaftesbury,  336-337,  336,  notes; 

337,  notes. 
Shakespeare,  154;  470.  note  2. 
Sighele,    Scipio,    373,    443;    444, 

note. 
Simmel,  George,  442. 
Skarzynski,  von,  171,  note  2;  178, 

note  2. 
Slavery,   145;  149;  note  4;  319. 

in  Babylonia  and  Assyria,  32. 

in  Egypt,  28. 

in  Greece,  62;  71;  71,  note  1. 
Smith,  Adam,  170-174;  171,  notes 

1,  2;   178,  note  2;    266;   275; 

285;  290;  466.     See  also  Ri- 
cardo. 
Social  aristocracy,  456  seq. 
Social  contract,   185;  186;  199. 
Social  democracy,  283  seq.;  472seq., 

See  also  Socialism. 
Social  economics,  399  seq. 
Social  ethics,   331   seq.;  339  seq.; 

347; 380. 
Socialism,  267  seq.;  277  seq.;  298 
seq.; 323;  461  seq.;  463  seq.; 
472  seq. 

German,  269  seq. 

varieties  of,   298  seq. 
Social  organization,  xliii;  315  seq.; 

318  seq.;  322  seq.;  325  seq.; 

328  seq.;  341  seq.;  344;  367; 

379,  399  seq.;  436  seq. 
Social    regulation.    342    seq.;    395 
seq. 

in  Middle  Ages.  103  seq. 
Society.     See  Social  organization. 
Sociological  School,  xxi;  308  seq.; 

348;  351  seq.;  368  seq. 
Sociology,  458  seq. 

and  ethics,  349  seq.;  356;  361; 
363;  366;  377  seq. 

and   positivism,  313  seq. 

development  of,  308  seq.;  352 
seq.  See  also  Comte,  and 
Spencer. 

ideals  in,  333  seq. 

legal,  6;  1.3-15;  15,  notes  2.  3. 
Socrates,  iii;  28,  note  1;  57  seq.; 
60;  ()4. 

ethical  concepts  in,  58;  59. 

his  philosophy,  57  seq. 


INDEX 


489 


[The  numbers  refer  to  the  pages.] 


Solon,  28,  note  1. 
Sombart,  303-307;  365,  note. 
Sophists,  66;  59. 

Sovereignty,    120;    121;   357;   438 
seq. 
and   the   people,    121;  358. 
Speck,  J.,  463,  note  1. 
Spencer,    Herbert,    xx;    56;    230; 

317-323; 351    399. 
Spinoza,  96;  127-132;  127,  note  1 
129,  note  1;  130.  notes  2,  3 
131,  note  2;  132,  note  1;  158 
167;  185;  188;  235;  241; 314 
316;  363;  452;  461,  note. 
Stahl,  1,  note;  6,  note  1;  8,  note; 
95,  note  1;  103,  note  2;  130. 
note  2;  143,  note  1;  211,  note 
5;  233-235;  281. 
Stammler,  xiv;  xiv,  notes  2,  3,  4; 
XV,  note  1;  8;  21,  note  2;  74, 
note  2;  115,  note  1;  147;  147, 
notes  1,  2;  214,  note  4;  393; 
398-422. 
State.      See      also     Klassenstaat, 
Kulturstaat,      Rechtsstaat, 
Zwangstaat, 
and  contract,  125;  385. 

foundation  of,  124-126 
135;  147;  161;  185;  186 
187;  188;  196;  197;  237 
451. 
nature  of,  122  seq.;  136;  137; 
210;  211;  223;  224;  252- 
254;  257;  258;  347  seq.; 
357  seq . ;  369 ;  378 ;  394  seq . ; 
436  seq.;  462  seq.;  466  seq. 
psychological     motives,     128 

seq. 
purpose  of,  xiii;  199;  266;  275. 
Stein,  Lorenz  von,  325-331. 
Stein,   Ludwig.   294,   note  2;   296, 
note  2;   333-335;   364,   note; 
435,  note  4. 
Steinmetz,  S.  R.,  392,  note. 
Stern,  Jacques,  215;  215,  note  3. 
St    Hilaire,  Geoffroy,  465. 
Stintzing,   121,  note  1. 
Stirner,    130;   289-291;    296;   330; 

456. 
Stoics,  75;  87-89;   129;   130;  241; 
434. 


Stooss,  Karl,  373;  373,  notes  2,  6. 

Subjectivism,  49  seq. 

Sudra,  37. 

Supply  and  demand,   175  seq. 

Susa,  34. 

Svadha, 38. 

Tacitus,  154. 

Tarde,   364,   note;  442-443;  444; 

444,  note. 
Tariff,  xxv. 
Theodorus,  75. 
Themis,  38;  47. 
Thomasius,   132-134;   132,  note  5; 

133,  note  3;  169,  note  2;  180. 
Thompson,  270. 
Thomsen,  Andreas,  444,  note. 
Thon.  384. 

Tille,  Alex.,  445,  note  3;  458. 
Timon,  77. 

Tolstoi,  144;  297-298;  330. 
Tönnies,  Ferd.,  328,  note  2;  365- 

367;  464,  note  2. 
Treitschke,  von,  325,  note  2. 
Trendelenburg,  238-240. 
Tucker,  Benj.  R.,  297. 
Turgot,  167,  note  4;  170. 
Twesten,  28,  note  1;  33,  note  6; 

37.  notes  3,  4;  41,  note  1;  45, 

note  2. 
Two  Swords.  See  Catholic  Church, 

philosophy  of,   doctrines  of. 
Tyranny  — 

rebellion  against,  118-121, 148. 
Tyrannomach.  286:  466.     See  Tyr- 
anny, rebellion  against. 
Uhlemann,  28,  note  1;  30.  note  2. 
Uhlhorn,  332,  note. 
Utihtarianism,  138-141. 

and  utilitv,  131. 

social,  336;  337. 
Vanicek,  46,  note  1;  47,  note  2;  48. 

note  1. 
Vaisya,  37. 

Value.     See  Supply  and  demand. 
Vanni,  Icilio,  xx. 
Veda,  36;  36,  note  1. 
Vedic  Aryans,  36;  47;  96. 
Virchow,   463,   note  3. 
Voigt,  Moritz,  84;  85. 
Voltaire,    146,    note   2. 
Urata,  38. 


490 


INDEX 


[The  numbers  refer  to  the  pages.] 


Vridanke,    102.  note   1. 
Wage,  177.     See  Labor. 
Wahlberg,  443,  note  4. 
Wallon,  71,  note  1. 
War  — 

legal  relations  of.  116-118. 
Ward,  Lester  F.,  364,  note. 
Warnkönig,  4,  note  2. 
Weber,  A.,  37,  note  2. 
Weber.   Max,  365,  note. 
Weinrich,    von,   383,   note. 
Weissmann,  465. 
Wallhausen,  J.,  41,  note  1. 
Will.    See  Freedom  and  Free  Will. 
William  of  Occam,  108;  108,  note4. 
Wilkinson,  26,  note  1;  29,  notes  2, 

3;  30,  note  1;  52,  note  1. 
Windelband,  Wilh.,  xii,  note,  and 

note  2;  xvi;  xix,  note  1. 
Wolf,  Jul.,  281;  281,  note  2. 
Wolff,  Chr.  von,  126;  160-162,  and 

notes;    180;    189;    285. 
Wollstonecraft,  Mary,  156. 


Worms,  328,  note  3;  364.  note. 
Woman  — 

position  of,  468  seq. 

in  Babyloniaand  Assyria,  33. 
in  Egypt,  30. 
in   India,   37. 
Wundt,  17,  note  1;  23,  note;  431- 

435. 
Xenophon,   58,   note;  59,   note. 
Zeno,   47;  48;   75. 
Zeller,   77,   notes  2,   3. 
Zenker,  289,  note  2;  294.  note  2; 

328,  note  3;  364,  note. 
Ziegler,  H.  E..  462;  463. 
Zimmer,  36,  notes  2,  3;  37,  notes 

1.  2,  3  4;  40,  note  1. 
Zimmermann    R.,    126,  note  3. 
Zimmern,    Helen,    156,    note    1. 
Zitelmann.    383,    note;   435;    454, 

note  3. 
Zorn,   108,  note  1. 
Zwangstaat,  268. 
Zweck  im  Recht.     See  Ihering. 


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